When it comes to wills for unmarried couples, it is a common misconception that an unmarried partner has similar inheritance rights to those of a wife/husband/civil partner, should their partner die without leaving a Will (intestate). This is not the case and the death of a partner (no matter how long-term the relationship) may leave the survivor with nothing.
The Law Commission has recommended that certain qualifying cohabitants be given automatic inheritance rights on intestacy. However, the government has confirmed that it will not implement these recommendations during the current parliament.
When someone dies without leaving a Will, there are legal rules (the intestacy rules) which decide who benefits from their estate. Any husband/wife/civil partner is the main beneficiary, followed by children, parents and siblings. Cohabiting partners are not included in these rules, neither are any children of the cohabiting partner from a previous relationship, even though they may have been brought up as the deceased’s own children.
It is estimated that up to two-thirds of all adults do not have a Will. It is likely that a high proportion of these are cohabiting couples, which are the very people whose security may depend on having Wills in place. You may be cohabiting following divorce and be disinclined to tie the knot again after your first experience. You may have children from an earlier marriage or relationship and maintenance obligations to a former spouse. No matter how complicated your relationships, it is important that you protect your partner by making a Will.
Making a Will to benefit your partner will not prevent other dependants (e.g. children) from making a claim against your estate (as mentioned below) if they feel they have not been adequately provided for. However, the Will stands as evidence that your partner’s financial security is your main priority and shifts the onus of making and succeeding in a claim away from your partner and onto others.
Assets held jointly by a cohabiting couple will usually pass automatically to the survivor and will not be affected by the intestacy rules (or the provisions of any Will). However, it is important that any house owned jointly is held as ‘joint tenants’ rather than ‘tenants in common’, in order for this automatic transfer to apply. Property owned in the sole name of the deceased (including his share of any house owned as ‘tenants in common’) will be distributed in accordance with the intestacy rules, in the absence of a Will.
Rights as a Dependent
The Inheritance (Provision for Family and Dependants) Act 1975 (as amended) allows certain categories of relatives and dependants to make a claim for financial provision from a deceased person’s estate (whether or not they have left a Will).
Unmarried partners (provided they meet certain criteria) can make a claim for financial provision under this Act and if successful the Court can make orders similar to those made on divorce in favour of the cohabitee. However, the process can be expensive, lengthy and stressful, as the cohabiting partner will be in direct opposition to members of the deceased’s family, who would otherwise inherit under the rules of intestacy (or the Will).