Unmarried couples and Wills - know your rights

Although it is often thought that “common law” spouses have the same rights as married couples, this is manifestly untrue when it comes to passing on…

Unmarried Couples – The Need to make a Will

Although it is often thought that “common law” spouses have the same rights as married couples, this is manifestly untrue when it comes to passing on assets on death. Without a Will, the deceased is ‘intestate’ and his/her estate is distributed in accordance with the ‘intestacy rules’ which dictate who should benefit from that estate, starting with spouses, followed by children, and then wider family members.

When an unmarried partner dies “intestate” the surviving unmarried partner receives nothing at all under the intestacy rules. If they sought to benefit from the deceased’s estate, they would have to consider costly and stressful litigation to receive anything at all. The law is out of step with society.

Joint assets may pass to the survivor but this will depend on how those assets are held. A house held as tenants in common will be dealt with as if each partner owns a specific share of the property and that will form part of a partner’s individual estate and will not automatically pass to the surviving co-owner.

It is therefore vital that unmarried partners make a Will to ensure that each other’s financial security is provided for. At the same time, parties can ensure that they have appointed guardians for children and set out what should happen when both partners have passed away.

Similarly from an inheritance tax perspective, there is no equivalent of the spouse allowance for unmarried partners. A Will can therefore be drafted to ensure that the survivor is left adequately provided for but without leaving assets to be taxed twice – once on each death.

Whilst statistics show that two thirds of the adult population have not made Wills, for co-habiting couples, making a Will is an even more critical issue.

Disputes on Death: What are the Options?

It is impossible to overestimate the impact of bereavement. If a dispute arises in relation to whether a family member or dependant has been properly provided for in a will (or under the intestacy rules), the impact on the parties involved can be extreme.

It is easy to see therefore why disputes over inheritance are raw and can become bitter and intractable in a very short space of time.  From a claimant’s perspective, the fact that they are not provided for under the will may come as a shock, or it could lead to wishing they had been more assertive when the deceased had talked about getting around to changing their will but had never quite found the time. There are also pitfalls under the intestacy rules which may not produce a result that seems fair. For example, a longstanding unmarried partner is not recognised at all under the rules, similarly an estranged spouse could benefit to the detriment of the deceased’s children.    

In the case of an unmarried partner, or a child who still lived with their parent into adulthood, it may create anxieties such as when they might be made to leave their home and how they will afford to live. Conversely, the claimant may be someone who the deceased had fallen out with, who the beneficiaries to the estate felt caused the deceased a considerable amount of hurt and that the deceased would have been devastated to think that their wishes could be overturned to provide for claimant. 

A claimant under the Inheritance (Provision for Family and Dependants) Act 1975 needs to issue their claim at court within six months of the date of the grant of representation. It is therefore important for a claimant to take advice early but to remember that with all parties’ agreement it is then possible to stay the proceedings (put them on hold) to allow negotiations to take place outside of the court forum.  Another reason to take advice promptly is that the provisions of this Act do not enable just anyone to bring a claim against the deceased’s estate. There are different requirements a claimant needs to fulfil depending on the nature of their relationship to the deceased.  

Solicitor led mediation is often a sensitive and effective method of resolving such disputes. The parties do not need to face each other across a court room. Separate discussions take place with their solicitor and the mediator relays information between the respective parties.  Each party can be supported in those discussions by a friend or family member to help with how difficult just being there is. There is the opportunity to talk through all options and take time to think about them, before making a proposal or counter proposal. There is not enough time, however, to enable people to bury their heads and hide from decisions that must be made but are uncomfortable.

In Weightmans’ family team we have extensive experience advising parties in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975 and successfully concluding matters in solicitor led mediation where it is appropriate.

Richard Bate is a partner in the Wills Trusts Tax and Probate Team and Lottie Tyler is an Associate Solicitor in the family law team at Weightmans LLP.

Lottie.tyler@weightmans.com

Richard.Bate@weightmans.com

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