The number of cohabiting couples in the UK is rising in comparison with the number of married couples, with the Office for National Statistics (ONS) finding the figure to be up 25.8% over the past decade. The ONS also estimates that there are around 3.4 million cohabiting couple families. If you are a cohabitee, what happens if you die without a will?
While cohabiting is increasingly popular and the number of marriages continues to decline, the law has not yet adapted to cope with the change.
In many instances, spouses and civil partners have rights that have not been given to cohabiting couples.
The reality of the common law marriage
A myth exists that rights are given to cohabiting couples after a number of years together and that they are deemed to have a ‘common law marriage’. In fact, common law marriage does not exist. If you are not married, you do not have the rights that married couples have in the event of separation or the death of one partner.
Intestacy laws – ie what happens if you die without a Will
It is always problematic if someone dies without leaving a Will, however if the person was cohabiting it can be particularly difficult for the surviving partner.
The Rules of Intestacy (the Rules) set out who will inherit an estate when someone dies without a valid Will in place. A cohabitee will receive nothing under the Rules, however long they have been with their partner.
If someone is married with children and dies without a Will in place, then the Rules provide that their spouse will receive all of their personal possessions plus the first £270,000 of the estate. They will receive half of the remainder of the estate. The children will share the remaining half of the estate equally between them. This can mean that children receive very little from an estate, where the intention may have been for them to receive more.
Where there is no spouse or children, the Rules leave property to other blood relatives in a strict order, starting with grandchildren, then parents, siblings, grandparents and uncles or aunts.
To reiterate, if a couple are not married, then when one of them dies without a Will in place, the other will not inherit anything, with the exception of some jointly owned assets.
Jointly owned property
There are two different ways of jointly owning a property. If property is owned as joint tenants, then on the death of one, the property will automatically pass to the other. However, if a property is jointly owned as tenants in common, then on the death of one owner, it will pass under the terms of their Will, if there is one, or otherwise under the Rules of Intestacy.
This means that if a cohabitee dies, the remaining cohabitee may find half of the home that they owned and lived in together has passed to someone else. They may be forced to agree to a sale.
A jointly owned bank account will usually automatically become owned by the surviving account holder.
Avoiding disinheritance – where there’s a Will there’s a way
Dying without a Will can create a very complicated situation for those left behind. As well as cohabitees being left with nothing, disputes can arise between family members who feel that they should have received something from the estate.
Cohabitees and others may start a legal claim against the estate for money they believe they should have received. This may drain the estate of funds, as it will be bound to defend the action, and can also cause long-lasting ill-feeling between people.
The simple answer is to put a Will in place. As well as ensuring that your loved ones will benefit from your assets in the way that you would want them to, you will have the peace of mind of knowing that you have done all you can to make things easier for everyone involved.
You can choose who to inherit your estate and also who you would like to deal with the administration as well as select a guardian for any children you may have who are aged under-18.
It is also open to you to include funeral wishes in your Will, which can be a great comfort to your family, as they will know when the time comes that the arrangements they are making are what you would have liked.
When making a Will you also have the chance to consider the best way of structuring your estate for tax and other purposes. If you are not married, then the Inheritance Tax implications will be different than if you were married.
Putting a Will in place will give you the reassurance of knowing that you have done all you can to protect and provide for your loved ones.
At Elm Legal Services, our Wills and Trusts experts can discuss your situation with you and draw up a bespoke Will on your behalf. We can answer any questions you may have and ensure that your Will directs your assets exactly where you want them to go.
Make A Free, No Obligation Enquiry Now
To speak with one of our specialist Wills & Probate Lawyers, please call us now on 0117 952 0698 or Make A Free Will Enquiry and we will discuss your current circumstances with you and explain all available options available to you.