In the UK, each year more of us are living together and starting families without marrying or being in a Civil Partnership. In 2017 there were over 3.3 million cohabiting couple families in the UK.
Despite becoming more common, the rights of cohabiting couples are not always well understood. In a 2008 survey, 51% of the respondents believed that unmarried couples who live together for some time “probably or definitely had a ‘common law marriage’”.
It’s a common belief, however the concept of a ‘common law marriage’ is a myth. In fact, the modern concept of a ‘common law marriage’ – that an unmarried couple living together will enjoy the very same legal rights as couple in a marriage or Civil Partnership – has never existed in England & Wales.
So if one of the unmarried partners dies, how does the law provide for the surviving partner?
If someone who is married or is in a civil partnership dies without a Will, their assets are distributed in accordance with the intestacy rules. Depending on the value of the assets of the deceased partner, the surviving married/civil partner will inherit all or some of the estate.
Legally speaking, unmarried cohabiting partners don’t enjoy the same rights as a married/civil partner. For couples who simply choose to cohabit rather than marry or enter into a civil partnership, if one dies then the surviving partner has no automatic rights to the deceased partner’s property and no automatic entitlement to inherit their estate.
The exception to this is if the cohabiting couple owned any property jointly. Any joint property will automatically pass to the joint owner on the death of the other.
If the cohabiting partner who dies has not made a Will, then any assets that they owned in their own name will be distributed in accordance with the intestacy rules. If they have any children then their estate will pass outright to their children, bypassing their cohabiting partner. If they did not have any children, their estate will pass to their remoter family including grandchildren, parents, siblings, nieces and nephews and so on.
Without a Will in place clearly indicating that the deceased partner’s share is to pass to the survivor, it is very possible that the surviving partner may not see any of their partner’s estate passing to them. If the cohabiting partners intend for the survivor to inherit their assets, it is advisable that they look to prepare Wills to that effect.
When preparing a Will care should be taken to make sure that it distributes your assets in the manner that you intended and that it is properly executed.
At FDR Law our Private Client team have the skill and expertise required to ensure that your wishes are met. If you have any questions or are unsure how to prepare your Wills, take advice and let us clarify matters for you.