Cohabiting couples and wills

May 9th, 2022

According to data from the Office for National Statistics (ONS), the number of cohabiting couples in the UK reached 3.6 million in 2021 – an increase of 22.9 per cent over the last decade. But did you know that cohabiting couples do not have the same rights as married couples?

For instance, without having an up-to-date will in place, if one partner dies, it can leave the other to deal with a difficult situation with their inheritance and face complex legal battles.

It is a common misconception in England and Wales that unmarried couples that live together, also known as ‘common-law spouses’, will automatically inherit each other’s estate in the event of one or the other passing. However, this is untrue, and the only sure way to make sure you do not lose out in the event of a partner’s death is to write a will.


What happens if my partner does not have a will?

If your partner dies and they do not have a will drawn up, then the assets in their name will pass under the laws of intestacy. These rules will determine what happens to the deceased’s estate if they do not have a will and how their assets and estate are distributed.

This is typically decided by the closest living blood relatives and next of kin in a certain order. For instance, the claims of the deceased’s children or grandchildren may be prioritised without taking into account close, unrelated relationships or who is in need of the inheritance the most. And if the unmarried couple had children together, they would be recognised as the next of kin.

This could mean that the deceased’s assets and estate can be transferred to people they had not intended and leave the surviving partner with nothing – even losing their house if it was not in their name.

Any joint assets, such as joint bank accounts or property owned as Joint Tenants, will transfer to the surviving partner. However, it would become the responsibility of the surviving partner to maintain a joint mortgage.


The importance of drawing up a will

By drawing up a valid will, you can outline what you want to happen to your assets and estate in the event of your death. This will provide security not only for the surviving partner but also for the children in some cases.

For example, as mentioned, the children of the deceased will be the next of kin under the rules of intestacy. But what about the children of the surviving partner? Without a will, they could lose out, as intestacy does not consider step-children.

A will can ensure that those who mean the most to you are looked after when you die, whether that is to pass on property or money to your cohabiting partner and children or to make sure that your partner has the financial support to continue paying a mortgage.

It is also essential to keep in mind that any wills drawn up by unmarried couples would become automatically revoked by a later marriage or civil partnership, and a new will would have to be drafted.


Why come to us to have a will drafted?

While there are many DIY wills available, many of them are inadequate and incorrectly drafted and could have costly implications such as unplanned inheritance tax obligations.

By employing the services of a law firm with experience in wills and inheritance tax, you can be sure that your family is provided for and your wishes are correctly in place after your passing. You can also receive expert estate planning advice so that you can make the most of what you plan to leave your family.

If youd like to talk to a member of the team about a new will for a cohabiting couple, please reach out today.