There is a common misconception that unmarried couples have the same rights as a married couple. The misconception is usually arrived at as a result of the term ‘common law spouses’.
Irrespective of how long a couple have been together, the rights of an unmarried couple do not match those of a married couple, particularly when it comes to inheriting from each other on death. This can be problematic for an unmarried couple because it means that one may not inherit from the other on death unless the assets are held in a particular way or unless there is a Will to make this provision.
Under the Intestacy Rules (the law that takes effect where someone dies without leaving a valid Will), unmarried couples do not automatically inherit from each other.
Ownership of a property
Not all couples want to leave their property to each other on death, for example, they might have children from previous relationships, and it may be their priority to provide for those children. That being the case, it is important to draw the distinction between the two ways of owning a jointly owned property and the treatment of each type of ownership on death.
Tenants in Common
This is where each owner owns a distinct share of the property. The share of the property does not automatically pass to the other co-owner on death and instead passes in accordance with their Will, or in the absence of a valid Will, under the Intestacy Rules.
This needs to be given careful thought as it might result in the surviving co-owner jointly owning a property with a third party i.e. the children of the first to die, and it might be that steps ought to be taken to protect their ability to remain living in the property for the rest of their life or until a future date before it actually passes to the children of the first to die.
Joint Tenants
If a couple owns a property as joint tenants, then the share of the first to die will automatically pass to the surviving co-owner on the death. Again, this could be problematic if there are children from previous relationships who now may not inherit from their parent, so again this needs some further thought.
Of course it is also possible for you to simply own the property in which you live with your unmarried partner in your sole name.
Sole Name
If you own a property in your sole name, and you are unmarried, the property will pass under the terms of your Will or under the Intestacy Rules if you don’t have one. Your unmarried partner will not inherit under the Intestacy Rules and so it is important that adequate provision is made in your Will if the intention is for them to be able to remain living in or to inherit the property.
There are some circumstances where an unmarried partner can make a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975, but there is no guarantee that they would be successful, and the process can very costly, time consuming and stressful.
Bank Accounts
Bank accounts can also pass outside of the scope of a Will. If you and your unmarried partner have a joint bank account, then this will pass automatically to the surviving co-owner, irrespective of any Will so it is important to make sure that this is what you would want to happen. If not, then thought ought to be given to moving the money into a sole account and making provision in a Will for it.
How we can help
It is extremely important that you not only have a valid Will but keep it updated to ensure that it reflects your wishes in the event you pass away. If you’d like to discuss preparing a Will, please contact me on 01332 364436 or via email at e.facer@timms-law.com.
