For couples who live together without marrying or entering a civil partnership, making a Will carries a lot of weight. It is a common assumption that a long-term relationship provides legal rights similar to marriage, but it does not. No matter how long a couple has lived together, or whether they have children, an unmarried partner has no automatic right to inherit their partner’s estate or deal with its administration. Whether they can remain in the family home depends on how it’s owned and what arrangements, if any, are in place, points covered in more detail below.
What is a Will?
A Will lets you decide what happens to your money, property and possessions after your death. Its main purpose is to specify who should benefit from your estate, appoint executors to deal with your affairs, and provide for anyone who depends on you. A Will is one of the clearest ways to make sure your possessions are placed in the care of those you wish to have them, and it can also form an important part of wider estate and Inheritance Tax planning.
What happens if you don’t have a Will?
Legally, if you die without a valid Will, you die ‘intestate’. This can happen for several reasons. You may simply not have made a Will, an existing Will may have been destroyed, or a Will you made may have been revoked. Marriage or entering a civil partnership will usually revoke an existing Will automatically, unless the Will was made in contemplation of that particular marriage or civil partnership.
Intestacy can be total, where a person dies without leaving a valid Will at all, or partial, where someone dies leaving a valid Will, but that Will does not dispose of their whole estate, in which case the intestacy rules apply only to the part of the estate the Will has failed to deal with. Not every asset passes under a Will or the intestacy rules, though. Jointly owned assets can pass independently of these rules, depending on how they’re owned, whether as joint tenants or tenants in common, a distinction covered in more detail below.
Where there are no surviving relatives able to inherit under the intestacy rules, an estate can ultimately pass to the Crown, or to the relevant Duchy of Lancaster or Duchy of Cornwall in certain circumstances, a reminder of how different the outcome can be from what someone might have wanted or expected.
The position of an unmarried couple
An unmarried couple is generally understood as two people who live together in a romantic relationship without being legally married or in a civil partnership. Contrary to popular belief, there is no such thing as ‘common law marriage’ in England and Wales, however long a couple lives together or however many children they have. The misconception persists partly because cohabitation can look, in practice, very similar to marriage. Couples share a home, finances and family life without necessarily realising that the law treats them very differently when one of them dies.
In practice, this means the partner has no automatic entitlement to the estate, and assets will usually pass instead to the deceased’s children or other relatives entitled under the intestacy rules. This can extend to property too. If the home was owned solely by the deceased, or held as tenants in common, the surviving partner has no automatic right to it under the intestacy rules.
What happens to the family home?
Where a couple own a property jointly, the position depends on whether they hold it as joint tenants or tenants in common. Joint tenants each own the whole property together, so when one dies their share passes automatically to the survivor by the right of survivorship, regardless of what any Will says. Tenants in common each own a defined share instead, and that share forms part of the deceased’s estate, passing under their Will or, if there is no valid Will, under the intestacy rules. Where a home is owned solely by one partner, an unmarried surviving partner has no automatic entitlement to it under the intestacy rules. For unmarried couples, reviewing how a property is owned is often as important as making a Will itself, and the two are usually best considered together.
Claims under the Inheritance Act 1975
A surviving partner in this position may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. One route requires the applicant to show they lived together with the deceased as a couple for the whole of the two years immediately before the death. Where that test isn’t met, there’s a separate route for someone who was being wholly or partly maintained by the deceased before they died, although the legal test here is different.
A successful claim isn’t guaranteed simply because the two-year test is met. The court weighs a number of factors, including the applicant’s financial needs and resources, the size of the estate, and the needs of other beneficiaries, before deciding whether reasonable financial provision has been made.
Where a claim of this kind becomes necessary, early advice matters. There are strict time limits, normally six months from the grant of representation, so it is important to understand your position and the options available as soon as possible. This underlines why the rules surrounding Wills, intestacy and inheritance can have significant consequences, particularly for unmarried couples, and why making a valid Will is one of the clearest ways to express your wishes and reduce the uncertainty that can arise when an estate is distributed under the intestacy rules.
How Buckles can help
Whether you are making a Will for the first time, reviewing an existing Will following a change in circumstances, or you need advice about an estate where somebody has died without a valid Will, our Private Client team is able to provide specialist support. We can advise on the most appropriate arrangements for your circumstances and help ensure that your wishes, your assets and the people important to you are properly considered.
