You’ve lived together for fifteen years.
You own a home.
You share the bills.
Perhaps you have children together.
As far as you are concerned, you are every bit as committed as a married couple.
So if one of you dies, everything automatically passes to the other.
Right?
Not necessarily.
This is one of the most important misconceptions I encounter when discussing Wills with unmarried couples.
The expression “common-law husband” or “common-law wife” is widely used, but it can give couples a false sense of security when it comes to inheritance.
If you live with somebody but are not married or in a civil partnership, making appropriate Wills can be particularly important.
Does a Common-Law Spouse Have Automatic Inheritance Rights?
Simply living together does not give you the same rights under the intestacy rules as being married or in a civil partnership.
It doesn’t matter whether you have lived together for:
- Two years
- Ten years
- Twenty years
- Forty years
Length of relationship alone does not turn an unmarried partner into a spouse for intestacy purposes.
That surprises many people.
What Happens If Your Partner Dies Without a Will?
If somebody dies without a valid Will, they are said to have died intestate.
Their estate is distributed according to statutory intestacy rules.
Those rules determine which relatives inherit.
An unmarried partner does not simply inherit under those rules because they were the deceased person’s long-term partner.
Depending upon the circumstances, a surviving cohabitant may potentially have other legal avenues or claims available.
But that can mean complexity, expense and uncertainty.
A Will can make your intentions much clearer from the outset.
“But We Own the House Together”
This is where the position becomes more interesting.
How your property is owned can affect what happens when one of you dies.
There is an important distinction between:
Joint tenants
and
Tenants in common.
Joint Tenants
Where the beneficial ownership is held as joint tenants, the deceased owner’s interest normally passes automatically to the surviving joint owner by survivorship.
This happens outside the Will.
So in that situation, the surviving partner may become the sole owner.
But that does not mean every other asset automatically passes to them.
Tenants in Common
With tenants in common, each owner has a separate beneficial share.
For example:
You own 50%.
Your partner owns 50%.
When one dies, their share does not automatically pass to the other by survivorship.
It passes according to their Will or, without a Will, under the applicable intestacy rules.
For unmarried couples, understanding this distinction is extremely important.
What If Only One Partner Owns the House?
This can create an even greater concern.
Imagine a couple have lived together for twenty years but the property is solely in one partner’s name.
The other partner may contribute towards household costs and regard it completely as their home.
If the owner dies without an appropriate Will, the surviving partner should not simply assume the property becomes theirs.
Individual circumstances and potential claims can be complex.
The sensible approach is to consider the position while both partners are alive and able to plan.
What If You Have Children Together?
Children add another dimension.
You may assume:
“If I die, my partner will get everything and look after the children.”
But intestacy does not simply recreate the Will you might have written.
Assets may pass according to statutory rules rather than according to the arrangement you personally considered most practical.
A Will lets you plan for both your partner and your children.
Guardianship Is Important Too
If you have children under 18, your Will can also form part of your guardianship planning.
The exact legal position regarding parental responsibility and guardianship depends upon family circumstances.
But parents should still consider who they would want to look after their children if the appropriate circumstances arose.
This is one reason Wills are about much more than money.
What About Stepchildren?
Suppose you live with a new partner and each of you has children from previous relationships.
You may regard all the children equally.
Inheritance law does not automatically mirror your emotional family relationships.
If you want a stepchild to inherit from you, that should be addressed clearly rather than assumed.
What Should an Unmarried Couple Put in Their Wills?
There is no standard answer.
You may decide to leave everything to each other.
Or you might want to balance providing for the survivor with protecting children.
Your Will could potentially deal with:
- Your partner
- Children
- Stepchildren
- Guardians
- Executors
- Trustees
- Specific gifts
- Property
- Alternative beneficiaries
The structure should reflect your family.
Should You Make Mirror Wills?
Many couples make similar or “mirror” Wills.
For example, each leaves their estate to the other and then to children.
That can be appropriate.
However, it is important to understand that ordinary mirror Wills do not necessarily prevent the survivor changing their Will later.
If protecting children from previous relationships is important, additional trust planning may need consideration.
Unmarried Couples and Property Protection
Property Protection Trusts are commonly discussed with married couples, but unmarried couples can also have estate-planning issues involving property.
The right structure depends on:
- Who owns the property
- How it is owned
- Each partner’s financial contribution
- Whether there are children
- Whether there are children from previous relationships
- What rights you want the survivor to have
This needs individual consideration.
What About Pensions and Life Insurance?
Your Will does not necessarily control every asset you have.
Pensions, death-in-service benefits and life-insurance policies may have separate nomination or trust arrangements.
If you are unmarried, it is particularly sensible to check these.
Do not assume your partner will automatically receive a benefit simply because you live together.
Check the scheme or policy.
Lasting Powers of Attorney Are Especially Important Too
There is another issue unmarried couples often overlook.
A Will only takes effect on death.
What if your partner is alive but loses mental capacity?
Being their long-term partner does not automatically give you unlimited legal authority over their:
- Bank accounts
- Property
- Financial affairs
- Health decisions
- Care decisions
This is where Lasting Powers of Attorney become important.
Each partner can choose who they want to act for them.
For many unmarried couples, making Wills and LPAs together provides much more comprehensive planning.
Don’t Rely on “Everybody Knows What We Want”
Families often know what somebody intended.
But knowledge does not necessarily create legal authority.
Perhaps your partner’s parents know you should inherit.
Perhaps their children agree.
Perhaps everybody gets along wonderfully today.
But circumstances after a death can be very different.
Grief, money and property can change family dynamics.
Clear documentation removes much of the uncertainty.
What If You Get Married Later?
Marriage can have significant consequences for an existing Will.
If you make Wills while unmarried and subsequently marry, you should review them.
A Will can sometimes be specifically made in contemplation of a particular marriage, but otherwise marriage can revoke an earlier Will.
Do not assume your old Will automatically continues unchanged.
Wills for Unmarried Couples in Wolverhampton
Your Will Writers helps unmarried couples throughout Wolverhampton, Codsall, Tettenhall, Perton, Wombourne and Brewood.
The first step is understanding your circumstances.
We can look at:
- Your relationship
- Property ownership
- Children
- Previous relationships
- Existing Wills
- Who you want to inherit
- Whether LPAs are also appropriate
Appointments can be arranged flexibly at your home, at my Codsall home office or another local location where you feel comfortable.
Five Questions for Unmarried Couples
If you live with your partner but are not married, ask each other:
Do we both have valid Wills?
Do we know how our home is legally owned?
Would the survivor actually inherit what we think they would?
Have we protected our children appropriately?
Do we have Lasting Powers of Attorney?
If you are uncertain about any of those answers, it is worth reviewing your arrangements.
Don’t Let a Myth Decide Your Family’s Future
You may hear people refer to common-law marriage all the time.
But estate planning should be based on the law rather than a familiar expression.
If you want your partner to inherit, say so in a properly prepared Will.
If you want your children protected, put the appropriate arrangements in place.
If you want your partner to make decisions for you during your lifetime, consider an LPA.
The law cannot automatically know what your relationship means to you.
A properly prepared Will allows you to make that clear.
This article provides general information only and should not be treated as individual legal advice.