“I’ve lived with my partner for many years, so they’re my common-law spouse. This means they will automatically inherit my estate, so I don’t need to make a will.”
Is this true or false?
Common Law Marriage is something of a modern-day myth in the UK. It is an assumption that after an unspecified length of time (five years or so) of cohabiting with a partner, the law will essentially treat you as a married couple, with all the rights that entails.
Unfortunately, this isn’t something that is recognised in English law. No matter how long you have been cohabiting with a partner, the law does not recognise you as such in any capacity. This means if either of you passes away without leaving behind a will, intestacy laws will come into effect, and you will not be automatically entitled to any inheritance from the deceased’s estate.
What is an intestate?
An intestate is the legal term for a person who dies without leaving a will. Intestacy rules are a set of laws that dictate what happens to the estate of the deceased if they left no will.
What are the intestacy rules?
Intestacy rules depend on the status of your immediate family. If you’re married or in a civil partnership and have no children, your surviving spouse or civil partner receives everything. If you have children, your spouse or civil partner receives the first £322,000 (exact amount subject to change), personal possessions and half of anything that remains. The children receive the other half of anything that remains.
What are the rules for an unmarried couple?
The intestacy rules were written 100 years ago and therefore don’t reflect modern conventions around family and relationships. Many couples choose not to get married for a variety of reasons. The Intestacy Rules are regularly criticised for producing unfair results when an unmarried cohabitee dies, and their partner doesn’t inherit any part of their estate.
The Law Commission recommended changing these rules to include non-married couples in 2011. Still, the proposition was rejected by the Government in 2013, and they don’t look to be changing anytime soon.
Unmarried partners, under the intestacy rules, receive nothing. The estate passes instead to the deceased person’s next of kin, usually their children, parents or siblings. The intestacy rules are applied irrespective of the deceased’s wishes, and it doesn’t matter whether you have been living together for three months or thirty years.
Unmarried partners are particularly at risk in cases where only one partner is named on the deeds as the property owner or if the property is co-owned between the partners as beneficial tenants in common. In both cases, if the property owner dies without a will, the property, or the deceased’s share in it, passes to their next of kin via the intestacy rules. This, in turn, means that the next of kin can legally evict the surviving partner from the property in order to sell it.
In many cases, the only option open to a surviving unmarried partner is to bring a legal claim against the estate for adequate financial provision. This is expensive, costly and stressful and can easily be avoided with proper professional advice and future planning.
Where does this leave me and my partner?
If you do not wish to get married or enter into a civil partnership, then it is essential to write a will naming your partner as a beneficiary. A will is a legally binding set of instructions to distribute your estate according to your wishes after your death.
We strongly recommend instructing a solicitor when writing your will. If your will isn’t legally water-tight, it’s open to being contested. This could result in your intended division of assets being changed, and there is a risk that your partner ends up with less or nothing at all.
If you’re thinking of writing a will, our team come highly recommended by our clients on the independent review site Review Solicitors. You can read some of these reviews here: https://www.reviewsolicitors.co.uk/greater-manchester/sale/slater-heelis-llp
If you’d like to talk to one of our team, you can contact us on 0330 111 3131 or fill out our contact form, and we’ll get back to you as soon as possible.