ARTICLE
22 July 2013

The Myth Of The Common Law Wife (Or Husband)

People who live together, possibly in a very long-standing relationship, often assume that the surviving partner would be properly provided for in the event of their death – the myth of the 'common law marriage'.
United Kingdom Tax

People who live together, possibly in a very long-standing relationship, often assume that the surviving partner would be properly provided for in the event of their death – the myth of the 'common law marriage'. However, the law of intestacy, which applies where someone dies without a Will, is wholly inadequate for cohabitants. Similar issues also arise for those cohabiting in a same sex relationship who could, but have not, entered into a civil partnership.

You may have read recently in the papers that changes are coming with regard to the law of intestacy. Certainly the Government has accepted some of the Law Commission's recommendations to make changes to the intestacy rules, but the proposal to change the rules for cohabitants will not be implemented during this Parliament.

The importance of couples in a long-term relationship having Wills in place cannot be over-emphasised. Left to itself, the law will generally not deal with your assets in the way in which you would have intended. Cohabitees, certainly if they have children but even if they do not, need careful advice on how their Wills should be drafted to ensure their assets will go to the persons they would want to benefit, and to try to reduce the heavy inheritance tax (IHT) burden which will otherwise fall on them: the IHT spouse exemption does not apply to a 'common law' wife, husband or partner.

For cohabitees, other aspects of estate planning may not be as straightforward as one might expect. For example, would the cohabitee be eligible to benefit under an occupational or other pension arrangement? If a suitable Will has not been made then even a spouse or civil partner may encounter significant financial difficulties following a death, but a cohabitee will almost certainly find themselves with complex and costly matters to be resolved, adding additional burdens at an already difficult emotional time.


It is particularly important to address issues such as how the family home is owned. Too often co-owners are not overly concerned about this until the relationship between them breaks down, or one of them dies. By this time it may be too late. Tax planning opportunities may have been missed, and there may be argument, distress and even litigation. The shares in the property need to be agreed and formally documented, ideally at the outset but at least before disagreement arises. This may involve appropriate provisions in the cohabitees' Wills.

Documenting ownership of a joint property is vital in other situations too: for example, where parents have assisted children to purchase a property.

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.

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