What rights do cohabiting couples have when their partner dies?

Recent research carried out by the insurance company Direct Line showed that 38% - more than one third - of cohabiting couples living in the UK were unsure of what their rights would be should their partner pass away without leaving a will, and that one in ten cohabiting couples wrongly believed that they would be automatically entitled to inherit their partner’s share of any property that they lived in together.

However, this is not the case. A surviving partner will only inherit if this is stated in the deceased partner’s will. This can come as an extremely nasty surprise to some people who are already mourning following the loss of their loved one, sometimes after many years of living together, and are having to deal with everything else that follows a close bereavement.

This is a big problem because the number of unmarried people in the UK who have made a will is substantially less than the number of married people. More than half of married people living in the UK have drawn up a will, whereas with unmarried people who live with a partner the figure is only 26%, just over a quarter.

Not only is this a large problem, but it is also one that is growing. In 1996 there were 1.45 million cohabiting couples in the UK, but 20 years later in 2016 the number had increased to 3.3 million and is expected to continue increasing. Despite this trend, the law has so far been very slow to catch up and is still very much geared towards married couples.

With this in mind, why do so few unmarried couples make a will? A key part of the problem is probably the frequently held (but erroneous) belief that the terms “common law husband”, “common law wife”, “common law spouse” or “common law marriage” have legal standing, and that this will be good enough to ensure they inherit should their partner die. Unfortunately for unmarried couples that is not, and never has been, the case. Being in a so called “common law” partnership will not give couples any legal protection whatsoever, and so under the law, if someone dies and they have a partner that they are not married to, then that partner has no right to inherit anything unless the partner that has passed away has stated in their will that they should.

So, what does this mean in practice? Well, assets that are held jointly will usually pass to the surviving partner. So, for example, unmarried couples might have a joint bank account, and if one partner dies the remaining partner can still continue to use the money in the account. However, they should also be aware that some of the money in the account might be claimed as part of the deceased partner’s estate. If property is legally owned as joint tenants (rather than as tenants in common) then again this should pass by survivorship to the partner.

It might also mean that the remaining partner isn’t entitled to the deceased’s partner’s pension or to receive anything from a life insurance policy unless specifically stipulated. Pension policies tend to differ dramatically, so if you are in a relationship and are not married to your partner then you should stipulate to whom your pension should be paid out in the event of your death. For some pension schemes this can be relatively simple and done through an “expression of wishes form”. For other schemes this may not be possible, and you may need to seek legal advice on what to do. For life insurance policies, if you want your unmarried partner to be the recipient of a pay out in the event of your death then they must be named in your policy as the recipient.

This aside, as is the case when anybody passes away without leaving a will, the “rules of intestacy” apply. We will cover this in more detail in a separate article, but in effect this means that the relatives of the person who has passed away will be the beneficiaries of their estate (even if they weren’t on speaking terms, hadn’t seen each other for years or didn’t even know each other), and the surviving partner, who might have lived with the deceased for the last 50 years, receives nothing.

The only option that is then left available to the remaining partner is for them to bring a claim under the Inheritance Act 1975 (or the Inheritance (Provision for Family and Dependants) Act 1975 to give it is full name). This would allow the surviving partner to make a claim if they are someone for whom the person who has passed away might reasonably have been expected to make provision in their will.

This can be used if the deceased partner failed to leave a will, or if they did leave a will but failed to make reasonable financial provision for someone in it. However, in order for it to apply, they need to have been maintained wholly or partially by the deceased prior to their death, or they needed to have been living with the deceased person as a husband, wife or civil partner in the same house for at least two years before their partner died. This would involve making a formal claim through the courts for an Order making a reasonable provision for the surviving partner and would require solicitors that are experts in inheritance disputes. This can be a complicated and long, drawn out procedure, and something that many remaining partners don’t want to do so soon after losing their loved one. A final rubbing of salt in the wounds is that, even if the application to the courts is successful, the cohabiting partner would not be exempt from Inheritance Tax in the way that spouses are.

Therefore, the take home message must be that if you are in a relationship but are not married, then you need to take steps to ensure that your partner will inherit should you pass away, and vice-versa. This, at least, involves both of you making a will, and may involve putting other measures in place too.

Sills & Betteridge have an experienced, knowledgeable and dedicated Wills, Trusts and Probate team which includes full members of the Society of Trust and Estate Practitioners (STEP) and the Association of Contentious Trust and Probate Specialists (ACTAPS). We can help to ensure that your will fully reflects your wishes and intentions or help you to make a claim if you are a dependant who has been left without reasonable financial provision following a death.

We can provide our full range of services via our network of offices. For more information, please contact us on 0800 542 4245, email us on info@sillslegal.co.uk, or call into your local office.