Alan Gates, Chartered Legal Executive in Coodes Solicitors’ Wills, Probate and Trusts team, explains why it is so important for unmarried couples to make wills.
The myth of common law marriage has not gone away, despite the fact that it has no base in English law. Many people are unaware that if you are not married or in a civil partnership you will not be automatically entitled to inherit anything when your partner dies. As an unmarried partner, the survivor will also have no say in important subjects such as funeral arrangements and the distribution of the estate.
If you are a cohabiting couple, and especially if you have children, it is vital to make wills to protect yourselves and each other.
Wills for unmarried couples with children
If someone dies without leaving a valid will, their estate, including any property they own, will be shared out under the rules of intestacy. If that individual was married or in a civil partnership, their spouse or civil partner can inherit under the rules of intestacy.
If unmarried partners have children together, and die without a will, then the children will inherit everything that their deceased parent owned.
If the children are under 18, whatever they inherit will be held for them in a trust until they reach adulthood. While this money can be used for a child’s benefit and education, a surviving partner will not have direct access to what is held in the trust. For someone who was financially dependent on their partner, this can cause serious problems in terms of what they can afford and their lifestyle. It may even threaten the security of their home.
In some cases where there has been no will, bereaved partners have been forced to bring a claim against their own children and other members of the family for financial provision. This is a terribly sad situation which I am sure everyone would want to avoid.
There are further considerations for those who have children from a previous relationship. In this case, it is vital to get expert legal advice to ensure your will reflects your wishes in terms of looking after the needs of your partner, as well as providing for your children.
Protecting the family home
For most couples, the most valuable asset is the family home so this is a key area to focus on when making a will. It could be that the property that was jointly purchased or it may be a house that one partner already owned before the couple made the decision to live together.
Jointly held assets can sometimes pass to the other joint owner on death but this is not always the case. Whether your unmarried partner will inherit your share of the property depends on the type of ownership as there are is more than one way of jointly owning a property. You may be classed as joint tenants, or tenants in common.
If an unmarried couple are registered as tenants in common, the property doesn’t automatically go to the surviving partner when the first partner dies. If they want their partner to inherit their share, they will need to set this out in the will or otherwise own the property as beneficial joint tenants.
Many cohabiting couples choose to be tenants in common as this gives each person a distinct share in the property and enables them to structure their wills in such a way so as to protect the surviving partner while at the same time preserving their share of the family home for their own children. This is particularly important for those unmarried couples who have children from a previous relationship.
Regardless of how you hold the property, setting out your inheritance wishes will give you the best chance of protecting each of your interests.
When a cohabiting couple plans to marry
It is important to understand that a will you made as an unmarried couple will be automatically revoked by a later marriage or civil partnership. The only exception is if that Will was made ‘in contemplation’ of marriage. Your lawyer can explain exactly what this means, but in simple terms it involves inserting a clause into the will, stating that the current will should not become invalid after the marriage has taken place.
Whatever your future plans, if you are unmarried and want to help your loved one receive as much of your estate as you would like, it is essential to make a will.
For more information or advice, please contact Alan Gates or another member of the Wills, Probate and Trusts team at Coodes Solicitors: 0800 328 3282 or firstname.lastname@example.org