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How to become a smug UNmarried couple…

Katie Brett, a Chartered Legal Executive from our Wills & Probate team talks us through the importance of having a Will and who will inherit your estate if you are unmarried and don’t have a Will in place.

Cohabitation has become more common for most couples and families over the past decade, with an increase of 25.8% of unmarried couples cohabiting since 2008.  In fact, the number of cohabiting couple families is growing more significantly than the number of married couple and lone parent families. 

As society changes, the world is adapting around it.  Many people choose to keep independent of their partner, seeing marriage as old-fashioned and unnecessary in today’s world. However, did you know that the partners in a cohabiting couple are not legally recognised as the beneficiaries of each other’s estates when one dies without leaving a Will?  It is a common misconception that cohabiting couples are treated as “common law spouses” and will inherit in the same way as a legally married spouse. 

Common law marriage is a myth and has no legal standing. 

Many people believe that their “next of kin” is legally entitled to inherit, and that their next of kin is whoever they want it to be.  This is wrong.  The term “next of kin” has no legal grounding in this situation and certain blood relatives will take precedent over a partner, irrespective of how long they have lived together or whether they have children.  The children will actually inherit their parent’s estate in place of the surviving parent, leading to financial difficulties, stress and upset.

Research from Direct Line Life Insurance last year showed that only 26% of cohabiting couples have a Will and therefore the remaining 74% could find that they experience great difficulties when their partner passes away.  When a person passes away without a Will, they have died “intestate” and so certain rules will apply in respect of who is entitled to inherit their estate and who is legally entitled to act in the administration of their estate.  These are the intestacy rules.

The intestacy rules state that, when a person dies without a Will and they are unmarried without children, the entire estate will pass to their parents in the first instance, if they are still living.  If they have no living parents, then the estate will pass to any siblings of the whole blood.  This excludes any half-siblings. 

In this situation, it is possible to prepare a deed which can vary the terms of the intestacy rules.  However, this needs to be signed by all of the residuary beneficiaries.  If any of those beneficiaries are minor children, they will not be able to sign this deed and permission to vary the terms of the intestacy rules may need to be obtained from the Court.  This is not a quick situation and can be costly.

At present Parliament are in the process of considering a Cohabitation Rights Bill, but in light of the current issues being debated, this may take some time to come through.  There is also no guarantee that it will be approved or what the terms of this Bill will be.

You can avoid all of this, if you plan in advance and draw up your Wills. We can do this for you for a fixed fee. Having a valid Will in place will confirm your wishes and save your family the future distress and difficulties that intestacy can cause… as well as allowing you a bit of smugness that you’ve ticked something really important off your life admin to do list.

To learn more about having your Will written, please contact our Wills team on 020 8771 5254, who can talk you through the process. Our Wills team are based across our Crystal Palace, Bromley and West Wickham offices.

About the author

Katie Brett, based in our Bromley office, is a member of our Wills & Probate team. Katie specialises in Wills, Lasting Powers of Attorney, Court of Protection applications and Probate matters.

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