Until death do us part – cohabitees and intestacy

PUBLISHED: 11:35 09 January 2020 | UPDATED: 17:14 09 January 2020

HRJ Foreman Laws Solicitors highlights the importance of having a Will for cohabiting couples

HRJ Foreman Laws Solicitors highlights the importance of having a Will for cohabiting couples


Neil Johnson, Solicitor at HRJ Foreman Laws Solicitors in Hertfordshire highlights the importance of having a Will for cohabiting couples

One in five couples (3.3 million out of a UK total of 16.2 couples in 2017) chooses not to enter into marriage or civil partnership. Among these couples, many do not have a valid Will. The law adopts a dramatically different approach to a bereaved cohabiting partner, compared to that of a surviving spouse or civil partner, regardless of the length of the relationship.

Married and Civil Partnership Couples

For a surviving spouse or civil partner, where their partner has died without leaving a valid Will (called 'dying intestate'), and subject to any declarations of trust with regard to jointly held property, the Intestacy Rules will apply as follows:

If the deceased died without children, the surviving spouse or civil partner will receive their loved one's entire Estate, provided it does not exceed £450,000.

If the couple had children (or if their children are deceased, grandchildren or great grandchildren) and the estate is valued at more than £250,000, the partner will inherit:

- the first £250,000 of the estate, and

- half of the remaining estate (the other half being divided between the children, grandchildren or great grandchildren), and

- all the personal property of the person who has died.

These rules do not apply directly to cohabiting couples.

Cohabiting Couples are not automatically entitled to any assets

There remains a myth that partners have protection under 'common law marriage'. The fact is, it does not exist in law in England and Wales. If you are not married or in a civil partnership, you are not automatically entitled to your partner's assets, regardless of how long you have been together. In the absence of a formal declaration of trust, this includes the home you may have lived in together for many years.

Where a cohabiting partner dies without leaving a child or children, the Intestacy Rules will look to the deceased's immediate family, such as parents, brothers and sisters, nephews and nieces. The surviving partner is, again, not entitled to anything.

Where a cohabiting couple have children, either together or the deceased has a child, the Intestacy Rules will pass the Estate to that child or children. The surviving partner is not entitled to anything.

These tough rules apply whether you are in a straight or same-sex relationship.

What can you do?

As with many things in life, 'prevention is better than cure'. By far the best option is for you and your partner to see a solicitor and make valid Wills. If you do this, the Intestacy Rules will not apply and your wishes will be carried out following your death.

If you are in the unfortunate position of having lost a partner who died intestate, you will need to make an application under the Inheritance (Provision for Family and Dependants) Act 1975 (often just called 'the Inheritance Act').

To qualify for such an application, you will need to have been cohabiting with the deceased for at least two years before your partner's death or depend upon them. In considering the application, the Court will weigh your claim against the claims of other parties in the intestacy, such as any children, in deciding what would be reasonable provision for you in your particular case.

Obviously, proceedings of this nature can be stressful and costly. There is also the time pressure of having to bring a claim within six months of the obtaining of Letters of Administration. Often, attempting settlement as soon as practicable can be the best option for all concerned, saving time, money and personal relationships.

About HRJ Foreman Laws Solicitors

HRJ Foreman Laws Solicitors delivers legal services for businesses, families and individuals. It has offices in Hitchin, Letchworth Garden City and Welwyn Garden City, Hertfordshire. It is recognised by Lexcel - the Law Society's quality mark for excellence in legal practice management and excellence in client care. It is also regulated by, and compliant with, the Solicitors Regulation Authority.

Its areas of expertise include Company and Commercial, Commercial Property, Conveyancing, Family Law, Wills, Trusts, Probate, Inheritance Tax, civil litigation, commercial litigation. www.hrjforemanlaws.co.uk Contact: Email info@hrjforemanlaws.co.uk

Telephone: Hitchin 01462 458711, Letchworth Garden City 01462 488333, Welwyn Garden City 01707 887700

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