19 Jul Until Death Do Us Part – Cohabitees And Intestacy
One in five couples (3.3 million out of a UK total of 16.2 million couples in 2017) chooses not to enter into marriage or civil partnership. Among these couples many do not have a valid Will. And just like the approach to cohabiting couples who have jointly held property, the law adopts a dramatically different approach to a bereaved cohabiting partner, compared to that of a surviving spouse or civil partner and regardless of the length of the relationship.
Married and Civil Partnership Couples
For a surviving spouse or civil partner, where their partner has died without leaving a valid Will (called ‘dying intestate’), and subject to any declarations of trust with regard to jointly held property, the Intestacy Rules will apply as follows:
If the deceased died without children, the surviving spouse or civil partner will receive their loved one’s entire Estate.
If the couple had children (or if their children are deceased, grandchildren or great grandchildren) and the estate is valued at more than £270,000, the partner will inherit:
– the first £270,000 of the estate, and
– half of the remaining estate (the other half being divided between the children, grandchildren or great grandchildren), and
– all the personal property of the person who has died.
These rules do not apply directly to cohabiting couples.
Cohabiting Couples are not automatically entitled to any assets
There remains a myth that partners have protection under ‘common law marriage’. The fact is, it does not exist in law in England and Wales. If you are not married or in a civil partnership, you are not automatically entitled to your partner’s assets, regardless of how long you have been together. In the absence of a formal declaration of trust, this includes the home you may have lived in together for many years.
Where a cohabiting couple have no children either together, or the deceased partner has no children, the Intestacy Rules will look to the deceased’s immediate family, such as parents, brothers and sisters, nephews and nieces. The surviving partner is not entitled to anything.
Where a cohabiting couple have children, either together or the deceased has a child, the Intestacy Rules will pass the Estate to that child or children. The surviving partner is not entitled to anything.
These tough rules apply whether you are in a straight or same-sex relationship.
What can you do?
As with many things in life, ‘prevention is better than cure’. By far the best option is for you and your partner to see a solicitor and make valid Wills. If you do this, the Intestacy Rules will not apply and your wishes will be carried out if anything should happen.
If you are in the unfortunate position of having lost a partner, you will need to make an application under the Inheritance (Provision for Family and Dependants) Act 1975 (often just called ‘the Inheritance Act’).
To qualify for such an application you will need to have been cohabiting with the deceased for at least two years before your partner’s death. In considering the application, the Court will weigh your claim against the claims of other parties in the intestacy, such as any children, in deciding what would be reasonable provision for you in your particular case.
Obviously, proceedings of this nature can be stressful and costly. There is also the time pressure of having to bring a claim within six months of the obtaining of Letters of Administration. Often, attempting settlement as soon as practicable can be the best option for all concerned, saving time, money and personal relationships.
How we can help
If you are already living with someone or considering it in the future, without getting married or entering into a civil partnership, our Probate, Wills and Trusts Department can assist you and your partner in settling your Wills.
If you find yourself in the tragic situation of having lost a partner without a Will in place, Neil Johnson in our Civil Litigation Department can advise on how to proceed, whether by negotiation or through an Inheritance Act claim.
Contact us today: info@hrjforemanlaws.co.uk Hitchin • 01462 458711 Welwyn Garden City • 01707 887700 Letchworth • 01462 488333 London • 0203 3279001