Firstly, let's hope the myth of a  common law spouse is dispelled.

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Drawing up a Will can be time consuming and sometimes complicated, but if you die without a Will  (called “Intestacy” or “Dying Intestate”) it can be considerably more time consuming, stressful and expensive than making one in the first place.  Dying Intestate places more stress and demands on your surviving family at an already difficult time.  If you are married, in many circumstances, we know it is extremely important to make a Will but if you are cohabiting, have children, and/or hold property or savings, it’s even more important to make a Will to be sure you have a say in how they are looked after when you die.

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If an unmarried partner dies without a Will, the surviving partner does not have the same rights as a surviving partner of a married couple or partner in a civil partnership.

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This is the case regardless of the length of time the unmarried couple have been together, or whether they have children together.

If their partner dies without leaving a Will, the surviving partner can be left in a very difficult position. They might find that their partner’s money and even their home passes, by law, to their partner’s closest relatives and these may be distant relatives that their partner never even met.

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No Automatic Right to Inherit

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On the death of a partner of an unmarried couple there is no automatic right for the survivor to inherit so an unmarried couple should ensure they seek legal advice and make suitable provision.

One way to do this would be for the partners to make Mirror Wills, simply leaving everything to each other.

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What About Mixed or Blended Families?

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A straightforward Mirror Will may not be appropriate for all unmarried couples. In some cases, one partner might have children from a previous relationship they want to leave their assets to.

In a situation like this, it might be that each partner makes a Will leaving their partner the right to live in the house (or their share of the house) rent-free for the rest of their life but directing that, on the death of the surviving partner, their house passes on to the children.

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Changes over Time

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It cannot be overstated how important it is to ensure that your Will is completely up to date and reflects the changes in your life and the law. Especially if you’ve been divorced before and are now in an unmarried or remarried relationship.

“Whilst marriage revokes any previous Will, divorce does not – it simply treats your divorced spouse as having died before you.”

 

Making a Financial Provision Claim

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Parliament has recognised the problem caused for the increasing number of unmarried couples. In 1995, they introduced an amendment to the Inheritance (Provision for Family and Dependants) Act 1975. This allows the surviving partner of an unmarried couple to make a claim against their deceased partner’s estate on the basis that the deceased partner has not made reasonable financial provision for them.

They can make a claim provided that they were living together as if married or in a civil partnership for at least two years leading up the death of the deceased partner.

Any claim must be issued in court within 6 months of the date of the grant of representation in the deceased partner’s estate.

But bear in mind, it is a claim for reasonable financial provision, which means a financial provision as the courts woudl consider reasonable in the circumstances for the surviving partner to receive for their maintenance. Whilst the word maintenance has a wide meaning it does not mean the surviving partner should expect a generous payment, even if the deceased partner was very wealthy.  Also bear in mind it is not easy or inexpensive to commence any legal proceedings including this type of claim.

Additionally, there may be other competing claims against the estate, particularly if the deceased partner had dependent children from a previous relationship.  This would be an area for a family lawyer to deal with and unless you can go to mediation, that will not be inexpensive.  It is best to take the time to plan to make a Will and any other documents or provisions you think you may need to put in place to organise your affairs.  In this modern developing world, with the changing nature of what is even defined as assets and property, it is best to take the step toward sorting your affairs.  We can guide you and help you organise what it is you need to do, taking it step by step.

 

Not a Substitute

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The fact that a surviving partner of an unmarried couple might have a claim against the deceased partner’s estate is not a substitute for unmarried partners to make Wills.

We are able to refer you to our expert solicitors to bring claims on behalf of surviving unmarried partners who find themselves in the unfortunate position of not having inherited on the death of their partner.

We offer a free consultation; either on the phone or at our office, and in certain cases we will agree to act on a no-win no-fee basis.

 

Writing a Will

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As you will see from the various information on this website that has been written to inform you as to all the things your Will can help protect and organise, we do not live in a vacuum in this increasingly complex society.  The law is ever evolving to help with that but, the law leaves the control of what you do with your things entirely to you.  It remains your choice who you wish to protect and what you wish to protect and precisely who is entitled to any of your hard earned assets and property.

 

As with any couple, but particularly if you are not married, you will need to discuss how you would like your assets (savings, pensions, investments, and of course your property) to be divided up should one or both of you die.

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• What the total value of your assets are

• Whether or not you are a homeowner or renting

• What you both earn

• How many children you have

 

If you have minors, you will need to consider parental responsibility issues, such as who are the registered parents on the birth certificate, whether there is one or both parents or indeed another from a previous relationship, whether you would wish to appoint guardians, whether you need to create a trust for the children until they are of age, and who is the best trusted person to be the executor of these arrangements.  This may seem daunting, but with a guiding hand this can all be put safely in place and as life develops, changes can be made to keep your Will up to date.