Categories
Elizabeth Middleton Solicitors

How Should Wills Be Handled for Unmarried or Cohabitating Couples?

young attractive couple having breakfast in bed

1st March 2021

Being married has many benefits, including legal ones. But some people don’t want to go down that route. When it comes to your Will, it’s essential to know what that means for the parties involved. Wills for cohabiting couples are a crucial component of financial planning and future provisions. 

Cohabitation is a new norm. The number of cohabiting couples doubled to 3.3 million in 2017, up from just 1.5 million in 1996. Many people may assume that there would be new legal protections for couples with these numbers in case one dies. 

Sadly, when it comes to inheritance, property, children and dependents, there are no legal protections for couples in this position. Therefore, ensuring Wills are correctly in place is essential to ensuring your partner is protected. 

The Law of Intestacy 

The law of intestacy explains what happens when someone dies without a Will. This law applies differently to married couples, civil partnerships and cohabitees.

The law doesn’t give cohabiting couples any rights. If someone in a cohabiting relationship dies, the other does not automatically receive anything. Here are some instances of what happens in these situations. 

  • Lance and Samantha have been cohabiting for a decade but are not married. Lance has £50,000 in savings and a company pension. Lance suddenly dies. Samantha doesn’t get any of his assets. The assets go to his closest living relative (his sister, Amelia). If Lance wants Samantha to benefit from his savings or his company pension, his Will is the only way he can do this. If Samantha has been living with Lance for two years immediately before his death, in the same house, then she will have a legal claim against his estate.  She has to instruct solicitors to bring a claim against Lance’s estate. The procedure is complicated.
  • Jenna and Jasmine are married. Jenna dies, leaving behind £100,000 in savings and £100,000 in investments. Jasmine is entitled to everything. She inherits the first £250,000 of everything that Jenna owns and would be allowed 50 percent of what she owned above that figure if they had children
  • Tristan and Jessica are not married but have one child – Mackenzie. Jessica suddenly dies, leaving behind £400,000 in savings. This money will bypass Tristan and go directly to Mackenzie. Mackenzie is 14, and so the £400,000 will be held in trust for her until she is 18. Tristan will have a claim against Jessica’s estate if they were living together in the same house, as a couple, for two years before her death.

Cohabiting couples don’t realise there is no legal protection because there’s no legal recognition of their relationship. “Common-law spouse” is often used to describe couples who are not married and aren’t in a civil partnership. But no law recognises this term or any benefits to it. So, Wills are essential to ensuring that a person’s wishes are met in the event of their death. 

Handling Assets

  • Money in the bank: If a partner in a cohabiting couple dies, the money in the bank under their sole name goes directly to their estate. The other partner will have no access to it. If there’s a joint account, then the surviving partner will have access to the account. But, part of it could be part of the deceased’s estate. 
  • Debts: Any debts accumulated by both partners may be left to the surviving partner solely. They may be left with debt, with no additional inheritance to help pay for them. 
  • Property: This part depends on how the property is held by both cohabitees. . If the two are tenants in a common, and one person dies without a Will, their part of the property will pass on to their estate, not their partner. If the property is held by the couple as beneficial joint tenants, then the part belonging to the partner that has died passes to the surviving partner.. 

Couples and Children

When it comes to children, Wills are highly important for cohabiting couples. Partners who are parents have legal rights regarding their children and can make decisions about significant parts of their lives. 

A mother that gave birth to a child automatically has parental responsibility. Still, the father doesn’t unless specific circumstances exist–if he was married to the mother at the time of birth, got married afterward, or his name is on the birth certificate. Issues can arise if one partner dies with responsibility and the other doesn’t have parental responsibility. 

Without parental responsibility or a Will, the surviving partner could be left without any rights to ensure the child remains with them. 

Claims Made Against the Estate

A surviving unmarried partner can claim against the deceased partner’s estate under the Inheritance (Provision for Family and Dependants) Act of 1975 if there’s no Will. A claim like that gives reasonable financial provision necessary for the maintenance of the surviving partner. 

This takes into account facts like their own financial circumstances and the estate’s value. But, there are no guarantees that the surviving partner will obtain the estate. The process can also be time consuming and expensive. Having a Will in place is much simpler, more straightforward, and far less stressful. 

The Benefits of Wills

  • Ensure the surviving partner is entitled to cash or assets the deceased would like them to have. A Will can lay out the details, whether part or all of their assets get left to their partner. 
  • Provides security when it comes to property ownership. For instance, if the property is held as tenants in common and the deceased’s share gets left to a different beneficiary, the survivor has no security in the property. . Without a Will, a proportion of the property can become legally owned by someone else-likely the deceased’s closest living relative. This situation can cause significant issues, especially if that person wants to sell the property. 
  • Issues with children are secured. A Will will lay out the inheritance and how children will be cared for in the event of one’s death. 
  • Avoids the need for a surviving partner to have to make a legal claim on the deceased’s estate. Making a legal claim can be messy and complicated. Avoiding the need to do this is almost always in the best interest of all parties involved. 
  • Minimises the possibility for more heartache or issues with relatives who have inherited what the deceased partner would have wished the survivor to have because of intestacy laws. 
  • Proper estate planning to minimise the impact of inheritance tax where it’s applicable. 

How to Tie Up Your Loose Ends

Wills for cohabiting couples give security and peace of mind for the future. Although it’s never possible to predict when something will happen, a Will in place will help cohabiting couples have some protection against any legal problems when it comes to being unmarried in the event of a partner’s death. Wills can lay out all the details of someone’s wishes so that everything will be evident in the event of one’s death. 

Let Elizabeth Middleton Solicitors Help

For assistance in preparing your Will and ensuring that all witnessing and signatures are conducted lawfully, reach out to Elizabeth Middleton Solicitors. We are pleased to offer virtual, COVID-safe options to ensure that your estate is properly planned and your wishes made known. 
Contact us today to learn how our services can help you and your family prepare for the future and protect your estate.