It is not uncommon for cohabiting couples to believe that if they have lived with their partner for a long time, then their property and other assets will automatically pass to their surviving partner on death.

However, unfortunately this is not necessarily the case and who would inherit the estate can depend on several factors.

Ownership of property

Couples that own a property together can hold their property in one of two ways. The first way is as ‘beneficial joint tenants’ which means that, on first death, the property passes via survivorship. Therefore, when one proprietor dies, the property automatically passes outside of the deceased’s Will (or the rules of intestacy if there is no Will) to the surviving owner.

The second way in which a property can be owned is as ‘tenants in common’. If a property is held as tenants in common, it means that each owner owns a distinct share of the property and those shares pass in accordance with the deceased’s Will. Therefore, the property won’t automatically pass to the surviving owner, and in fact could pass to someone else entirely depending on the terms of the Will.

The decision of whether to hold the property as beneficial joint tenants or tenants in common will be made when couples first buy their property, however it is also possible to change the ownership of the property at the Land Registry at a later date.

What happens if I die without a Will?

If you do not have a valid Will at the date of your death, then you will die ‘intestate’. Your property may still pass by survivorship (if it is held as beneficial joint tenants), however the remainder of your estate (including your share of the property if it is held as tenants in common) will pass in accordance with the Rules of Intestacy to your closest family members. The Rules of Intestacy set out an order of priority in which family members are to inherit.

The order is as follows:

  • Spouses/civil partners
  • Children
  • Parents
  • Siblings of full blood (or their lineal descendants)
  • Siblings of half-blood (or their lineal descendants)
  • Grandparents
  • Aunts and uncles of full blood (or their lineal descendants)
  • Aunts and uncles of half-blood (or their lineal descendants)
  • In default, the Crown.

Can cohabiting partners inherit under the intestacy rules?

No. It is very important to note that the rules of intestacy make no provision for unmarried partners, despite how long you may have cohabited with each other.

There may be situations where cohabiting partners can make a claim against the estate for a lack of reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975, if they have lived together for a period of at least two years immediately prior to the death.

However, bringing a claim before the Court can be very costly, and there is no guarantee of how much may be awarded if the claim is successful.

The importance of cohabiting couples making a Will

It is therefore very important that cohabiting couples consider making a Will. If you live with your partner and you do not have a Will in place, this could lead to your partner not having the right to continue living at your property after death. By making a Will, you can ensure that your estate passes in accordance with your wishes and that your partner is provided for financially.

When couples are buying their first house together, often their last thought is that they should make a Will. However, it is never too early to make a Will and doing so when you move out together can certainly help to save your loved one a great deal of stress and uncertainty at a very difficult time.

Next Steps...

If you have any queries or if you would like some advice regarding making a Will then please do not hesitate to contact me via telephone on 01283 214 231 or via email at s.wildsmith@timms-law.com.

For more information on Wills and Probate, visit our website here.