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Valentine's Day – the practicalities of romance

Are you romantic or practical? Can you be both? We hope that this Valentine’s Day you’ll focus on the romance and leave us to consider some practical…

Are you romantic or practical?  Can you be both?  Can lawyers be romantic? Whatever your views, we hope that this Valentine’s Day you’ll focus on the romance and leave us to consider some practical matters. After all, if Valentine’s Day heralds a decision to move-in with a partner or an engagement, only the most practical of us would think about what those changes might mean if one of you dies.

If you want your partner to inherit your estate you need to make a Will.  Without one, your estate will pass according to the "intestacy rules" which make no provision for a partner. If you are not married and have no children, the rules provide that your estate will pass to your parents, your siblings (if your parents have died) and then to remoter relatives if there are no surviving siblings.  

While your partner may have a claim against your estate for "reasonable financial provision" once you have lived together as "husband and wife" for at least two years, you may want them to get more than that.  If your family inherit your estate under the intestacy rules they may not agree with your partner's claim for reasonable provision and that may well lead to a dispute.

The solution is to make a Will so that your estate will no longer be governed by the intestacy rules and, within that Will, either leave your estate to your partner or make provision for them. 

If you own any property jointly with your partner or a spouse you need to consider how it is held. Property can be held as "joint tenants" or "tenants in common".  Property you own as a joint tenant will pass to the other joint owner upon your death irrespective of what is said in your Will or under the intestacy rules.  On the other hand, if you own property as a tenant in common it will pass according to your Will or the intestacy rules.   Therefore, it is important that you hold any joint property so that it passes as you want and does not undermine what you have said in a Will.

It may be that you are moving in with a partner but do not want them to inherit your estate.  If so you need to be aware of their potential claim for reasonable provision, which we mentioned earlier.  Your best option would be to make a Will so it is clear how you want your estate to be divided and place a letter with your Will setting out your reasons for excluding your partner or explaining why you consider the provision you have made for them is appropriate.

If you already have a Will when you get married it will be revoked by the marriage.  Your estate will then be governed by the intestacy rules.  While the rules do make provision for a surviving spouse it may not be what you want.  Not all Wills have to be revoked on marriage.  A Will can be drafted to say that it is made in contemplation of a marriage to a particular person.  If so, it won’t be revoked by marriage - provided the marriage is to the person named in the Will!