Common Law Spouses

On behalf of Attwaters Jameson Hill posted in Wills on Tuesday, November 22nd, 2016


We’re not married, but we’ve been together for 25 years. When I die will my partner inherit?

Many people believe that there is a ‘common-law spouse’ status in UK law, but in fact this is a myth and doesn’t exist. So, when one partner in a cohabiting couple dies without leaving a valid Will, it can come as a tremendous shock to the bereaved partner that their late partner’s estate doesn’t automatically pass to them.


How assets pass on death

If a cohabiting partner dies without a Will, the surviving partner has no automatic right to any of the deceased’s assets unless the couple owned property jointly (as ‘joint tenants’ in legal terms). Without a Will, the assets will be distributed under the laws of intestacy, meaning that family members and blood relatives will benefit; the deceased’s partner may receive nothing.

It’s worth noting, however, that a cohabitee may receive any benefits under a pension, death in service or life insurance policy where they were nominated as the beneficiary.


Legal rights

In certain circumstances, a cohabitee can make a claim for part of the assets. Under the Inheritance Provision for Family and Dependants Act 1975, which was amended in 1996, a dependant cohabitee who was wholly or partly maintained by the deceased immediately before the death, or a cohabitee who is not a dependant but who lived with the deceased as man and wife for a period of two years immediately prior to the death, can make a claim to the court for financial provision.

This works in a similar way to how settlements are arrived at in divorce cases. The court can order the payment of maintenance, lump sums or the transfer of property.


Legal protection for cohabitees

Couples can protect themselves by writing a ‘cohabitation agreement’ or a ‘declaration of trust’. Both these contracts are legally binding and set out exactly what each party would receive on separation or if one of them were to die, and can include any spousal or child payments that will be made. It’s vitally important that they each have a valid Will in place too.


Safeguarding your rights

It is estimated that between half and two-thirds of the adult population of the UK do not have a Will. Sadly, it’s often those most in need of a Will – such as cohabitees –who are more likely not to have written one.

With more and more couples choosing to cohabit for longer, often postponing marriage or civil partnership until later in life, it makes sense for cohabiting partners to take advice to ensure their interests are fully protected.

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