There is a belief that cohabiting couples have a "common law marriage" and enjoy the same legal rights as married couples or civil partners on death. This is not true. Action must be taken by the couple during their lifetimes to ensure that the survivor will be looked after financially.
If a cohabitant dies without a valid Will and English succession law applies, the division of their assets will be decided by the Intestacy Rules. Under these Rules, the whole of the cohabitant's estate will pass to his or her children or, if none, to his or her parents or other family members.The unmarried partner is not included. This could have an impact on the survivor's right to stay in a jointly-owned home, for example.
To rectify the situation, the surviving partner can apply to the court for "reasonable financial provision" under the Inheritance (Provision for Family and Dependants) Act 1975 and may well be successful, but the process could be expensive, time-consuming and emotionally challenging.
To avoid this problem, it is very important that cohabiting couples make Wills. A Will bypasses the Intestacy Rules and enables the surviving cohabitant to benefit. Alongside the Will, the couple should take advice on how Inheritance Tax may impact on their combined estates as the IHT exemption that applies to spouses and civil partners will not apply.
The Law Commission has recommended that cohabitants be given the same rights as spouses under the Intestacy Rules but these recommendations have yet to be acted upon by the government. In the meantime, and in any event, having a Will provides peace of mind and financial security for the surviving cohabitant
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
