The Common-Law Spouse Myth
Don’t believe it, It’s all a myth!
Are you a cohabiting couple who have not made a Will? If so, you’d be wise to read on.
Contrary to popular belief (and what a friend of a friend’s dog groomer told you), there is no concept in family law as a common law spouse – the idea that despite no legal marriage, cohabiters have the same rights as if they were husband/wife/civil partners.
No matter how many years cohabiters have lived together, no matter how many children they might have together, the fact remains that upon death, there exists no automatic cohabiter rights to a partner's estate. Moreover, in some circumstances, death can leave the survivor with nothing.
Over 10 years ago, The Law Commission recommended that certain qualifying cohabitants be given automatic inheritance rights on intestacy. Nothing has happened in this regard and the recommendations remain dormant. What is worrying is that the people who are most in need of a Will, that is cohabiting couples, are among those least likely to actually have one.
The law currently gives surviving spouses/civil partners an automatic inheritance in the case of intestacy. Conversely, cohabitants can normally only benefit from the estate if the courts (under the Inheritance (Provision for Family and Dependants) Act 1975)) grants a discretionary award on the basis of need.
If you are a cohabiting homeowners, consider also the status of your property. There are two classes of co-ownership of property in the UK. First, there is joint tenancy ownership. This deems that the interest in the property is equal and that the property will be inherited by right of survivorship, i.e. when the co-owner dies, the other owner(s) will automatically own the deceased’s share. Second, there is tenants in common. This is where each owner has a definite share of a property, either equal or a split percentage. In a tenancy in common, the deceased person's share will either pass to their heirs through a Will, or through the intestacy rules and will not go automatically to the surviving tenant(s).
Thus, be warned, it is vital that any house owned jointly is held as joint tenants rather than tenants in common, in order for an automatic transfer to apply. Or, make a Will and be clear about your intentions. Property owned in the sole name of the deceased (including a share of any house owned as tenants in common) will be distributed in accordance with intestacy rules, in the absence of a Will.
The message here is that if you are not married/civil partners and you want to ensure your partner inherits something of your estate, the only way to guarantee this is to make a Will.
CONTACT TWB
It is always important to review your circumstances as family life evolves and when cultural, political and tax legislation changes occur. Keep up to date with developments and seek expert advice from firms like TWB, but know that TWB is at the forefront of its profession.
Estate Planning is an integral part of our service. As well as minimising the effects of IHT, many families wish to ensure the preservation of their wealth through several generations by making provision for children, whilst also considering events such as divorce, bankruptcy and accounting for later-life care. We have written thousands of Wills and helped countless clients with IHT planning, Lasting Powers of Attorney (LPA) and much more.
Contact Jules Jack for more information: julesj@twb.org.uk - 020 8920 3360