Cohabiting Couples and Wills - The Myth of the Common Law Marriage
Posted on December 13th 2016There is a common misconception that cohabiting couples or those in long term relationships will inherit in the event of death. Although the terms common-law wife or husband are frequently used to describe a couple who live together, these relationships do not have legal recognition and there are major legal differences between those who are married (or in a Civil Partnership) and those who simply live together as partners. Click here to read a useful guide published by the Citizens Advice Bureau on these differences.
The fact is that, if you are not married or in a Civil Partnership, there can be serious and often unexpected implications in the event of the death of you or your partner.
Facts
If you live with your partner, but are not married or in a Civil Partnership, you do not automatically acquire rights to their property or assets by virtue of that cohabitation or indeed the length of your relationship. Those rights would only apply in the event that you get married to your partner or enter into a Civil Partnership with them. If you live with someone and they die, then unless they have made a Will making provision for you, you have no automatic right to inherit their Estate.
This could place you in a very difficult position. If your deceased partner owns all the assets outright and they die without making a Will, you may find you have to leave your home. This is because, in those circumstances, the deceased’s Estate would either pass under the terms of their Will or, if they died without making a Will, the Estate would pass to their next of kin under the Intestacy Rules. This could be their children, parents or siblings etc.
Similarly, if you own property jointly with your partner then, unless that property was owned as "Joint Tenants", the deceased`s share would be dealt with under the Intestacy Rules or under the terms of any Will. This might mean that someone else such as a third party might be involved and could mean end up owning your home jointly with your deceased’s partner’s children or a charity. Not ideal!
Practical Example
John and Mary are a cohabiting couple who have been living together for 10 years. They are not married and neither of them have made a valid Will. Mary does not have any children although John does have two adult children from a previous relationship. The house is owned solely by John. They both see themselves as common law man and and wife and assume that the other will inherit automatically should one of them die.
John then dies unexpectedly. As he did not have a Will, his estate will be distributed according to the Intestacy Rules. The Intestacy Rules do not make any provision for an unmarried partner and, therefore, John`s children will inherit his whole estate which includes the property where Mary lives. This will obviously Mary in a very precarious position and will probably have to leave the house.
How to avoid this?
Making a Will to benefit each other (either in full or part) is therefore critical to ensure that you are both treated properly, especially in relation to your home. Taking the example above, if John had made a Will that had left the property to Mary or simply included a provision that she could continue to live in the property for a period of time, this would have protected her position. Please click here to read our guide on Making a Will.
What if you weren't named in a Will?
It may be possible in limited circumstances to make an application to the Court for provision the Inheritance (Provision for Family and Dependants) Act 1975. This Act is for certain classes of people to make a claim against the Estate of the Deceased person if "reasonable" provision has not been made for that person. It may be possible for a cohabitee (such as Mary in the example above) to bring a claim under this Act ; however, it is really best not to rely on those provisions, as a cohabitee may not always come within the class of people entitled to bring a claim and further, the provision made for you may be limited, as any award to you is at the discretion of the Court. The costs of bringing any such claim can be very expensive and there is obviously no guarantee that any such claim would be successful.
For more information or advice, please contact James Rousell on 01384 371622 or j.rousell@wjclaw.co.uk