Many couples choose to live together without getting married or entering into a civil partnership. While this is becoming increasingly common, many people are surprised to learn that cohabiting partners do not have the same legal rights as married couples when it comes to inheritance.
Recent discussions around reforming the law have once again highlighted the issue, with proposals to strengthen the rights of cohabiting couples after the death of a partner. However, until any changes become law, many unmarried couples remain at risk if they do not have a valid Will in place.
The myth of the ‘common law spouse’
One of the biggest misconceptions in England and Wales is the idea of the “common law spouse.”
Many people believe that if they have lived with their partner for a number of years, they will automatically inherit their estate if one of them dies. Unfortunately, this is not the case.
Unlike married couples and civil partners, cohabiting couples do not automatically inherit from one another under the rules of intestacy.
What happens if you die without a Will?
If someone dies without a valid Will, their estate is distributed according to the intestacy rules.
These rules determine who inherits the estate, and they do not currently recognise unmarried partners, regardless of how long the couple have lived together or whether they have children.
This can mean that:
- your partner may not inherit your home or other assets;
- your estate could pass to children or other relatives instead;
- your partner may face financial uncertainty at an already difficult time; and
- disputes between family members become more likely.
- It may fall to a more remote person to administer your estate
While it may be possible for a surviving partner to make a claim against the estate in certain circumstances, this can be stressful, time-consuming and expensive.
Are the law and the rules changing?
There has been increasing discussion about reforming the law to provide greater protection for cohabiting couples when one partner dies.
The Government has launched a consultation looking at whether qualifying cohabiting partners should have greater rights to make financial claims on an estate where someone dies without a Will.
Although these proposals reflect the changing nature of modern families, no changes have yet been introduced. For now, the existing rules continue to apply.
Why making a Will is still the best protection
Regardless of whether the law changes in the future, making a professionally drafted Will remains the most effective way to ensure your wishes are carried out.
A Will allows you to:
- decide who inherits your estate;
- provide for your partner;
- appoint guardians for your children;
- choose your executors; and
- reduce the risk of disputes after your death.
It also gives you peace of mind that the people who matter most to you will be protected.
What if you own your home together?
If you own a property with your partner, it’s important to understand how it is owned.
Property held as joint tenants usually passes automatically to the surviving owner.
However, if you own your property as tenants in common, your share of the property forms part of your estate and will pass according to your Will—or, if you do not have one, under the intestacy rules.
This is another reason why taking legal advice is so important.
Reviewing your Will as life changes
Making a Will is not something you should do just once.
It’s sensible to review your Will whenever your circumstances change, for example if you:
- move in with a partner;
- buy a property together;
- have children;
- separate from a partner; or
- acquire significant assets.
Keeping your Will up to date helps ensure it continues to reflect your wishes.
How Oliver & Co Solicitors can help
If you live with your partner and want to make sure they are protected, making a Will is one of the most important steps you can take. Our experienced Wills, Trusts and Probate team can provide clear, practical advice tailored to your circumstances, helping you safeguard your loved ones and gain peace of mind for the future. Contact Oliver & Co Solicitors today to find out how we can help.
