Cohabitees: Matters of Life and Death
  • 16th Feb 2018
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Nowadays it is very common for couples to live together for extended periods of time before getting married or forming a civil partnership, if they marry or enter into a civil partnership at all.  In fact, the number of cohabitees in the UK more than doubled from 1.5 million in 1996 to 3.3 million in 2017.

Worryingly, research just published by a leading life insurance company has revealed that more than a third of cohabiting couples do not know what their legal rights would be if their partner died, with some people still believing in the “common law marriage” myth.

Only 26% of all cohabiting couples have a will, in contrast to 52% of married couples.  With no automatic provisions for cohabitees, it is of utmost importance that cohabitees know their legal rights and consider making a will.  It may also be a good idea to consider a Cohabitant Agreement, with the assistance of our Family Law experts.

10% of cohabiting couples are not sure about the different ways of co-owning property and believe that if they own a home together they would automatically inherit their partner’s share of the property on death.  If a property is owned jointly as tenants in common, the deceased cohabitee’s share of the property will pass in accordance with their will, or if they have not made a valid will, the intestacy rules.  Under the intestacy rules, the deceased cohabitee’s share of the property would pass to their family such as children, parents or siblings.  As a result, the surviving cohabitee may have to sell the home.  Please see case study 1 below.

To ensure that your estate is distributed in accordance with your wishes,  please call us to discuss your will and how we can help you.  During an initial consultation, our experts also consider inheritance tax, pensions and life policies and tailor their advice to each individual’s specific circumstances. 

Cohabitees should also consider what would happen if they were to lose capacity to manage their financial affairs or make health and welfare decisions during their lifetime.  Lasting Powers of Attorney(‘LPAs’) are legal documents that allow a person to appoint one or more people of their choosing (known as ‘attorneys’) to help them make decisions or to make decisions on their behalf. 

We recommend that everyone, at any age, considers making LPAs. Without these documents in place, cohabiting partners may find that they are unable to make important decisions about their partner’s health, property or financial affairs.  Furthermore, joint bank accounts may be frozen if one owner has lost mental capacity. 

The creation of LPAs can be discussed with our Tax and Estate Planning experts at the same time as your will, providing you with the very best and cost effective service.  If you would like to discuss making a will and/or LPAs, please do not hesitate to contact our friendly and professional Tax and Estate Planning team.

Case Study 1

Mr Smith and his fiancée Miss Clark had happily lived together for three years.  Mr Smith had a five year old daughter named Lily, from his previous relationship.  The house they lived in was held in Mr Smith and Miss Clark’s joint names as tenants in common. 

Sadly, Mr Smith died unexpectedly having never made a Will.  He had not thought a Will was necessary, wrongly believing that Miss Clark would receive his share of the property as they were joint owners.  He had not understood the different ways of co-owning property.

Under the intestacy rules Lily inherited the whole of her father’s estate (to be held on statutory trust as she was under 18).  As they were not married, Miss Clark was not entitled to any part of Mr Smith’s estate.  Miss Clark could try and pursue a claim against the estate, but this is a costly and stressful procedure and she would need to prove a financial need to the court.  

Article written by Bekka Fuszard, Tax and Estate Planning Solicitor,  February 2018. 

Source of statistics: Direct Line Life Insurance based on research conducted by Opinium among a nationally representative sample of 2,006 adults between 9 to 12 January 2018