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Do unmarried couples need a Will?

View profile for Antoinette Merryfield
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The phrase ‘common law marriage’ has been a widespread misconception for many years, with cohabiting couples under the impression that should one of them pass away, the other would have the same rights as a spouse or civil partner with their estate passing automatically to them.  This is not the case however, and with the number of cohabiting couples on the rise each year, it has never been more important to understand your position.  Antoinette Merryfield, Trainee Solicitor in our Private Client department, explains more about why you should write your Will if you are an unmarried couple and the considerations you should make.

Why should I write a Will?

There are so many reasons why everyone should have their affairs in order, but for unmarried couples this becomes even more important.  Without a Will in place, should you pass away your estate would be distributed based on the rules of intestacy and would not automatically be passed to your significant other.  You may believe that if you have been together for a significant amount of time, have children together or own property together that you have the same rights as a married couple, but this is simply not the case and without making it official with a Will your partner could be left in a difficult situation.

Using a Will, an unmarried couple can choose:

  • Your beneficiaries for your estate, including arrangements for any money, savings and other assets you have.  Any assets held in a joint bank account should still be accessible to the surviving partner, however part of these funds could also be included as part of your estate. 
  • Where your pension should be left.  Depending on your pension provider, you may be able to specify this using an “expression of wishes” form; otherwise this should be made clear in your Will.
  • To make provisions for your partner to remain in the family property following your death.  This is particularly pertinent if you did not own the property as ‘joint tenants’.   In this situation, the property will pass automatically to your partner, however if the property was held as ‘tenants in common’ the share owned by the partner who has died will form part of their estate and without a Will would be subject to the rules of intestacy.
  • Legal guardians of your children, assuming the other partner doesn’t have parental responsibility, and ages for when they may inherit any part of your estate. A child’s mother and parents who are married to each other at the time their child is born automatically have parental responsibility. Fathers can acquire parental responsibility by being named on the birth certificate, marrying the mother or by being named in a child arrangement order. If one partner were to pass away leaving the other without parental responsibility, or if both unmarried parents with parental responsibility were to pass away leaving no one with parental responsibility and no specific wishes detailed in a Will,  the Court would assess what is in the best interests of your children and grant a care or supervision order.
  • Confirming your funeral wishes.

What are the rules of intestacy?

As a married couple, if you pass away without a Will, the primary beneficiaries of your estate would be your spouse/civil partner and any children.  As an unmarried couple, your estate would automatically pass to any children of yours, in equal shares if you have more than one child.  If your children are under 18 years of age, then the funds will be placed in Trust for them until they are able to inherit.  As an unmarried couple without children, your relatives would be entitled to inherit part or all of your estate in the following order:

  • Parents,
  • Siblings,
  • Nephews and nieces,
  • Grandparents,
  • Uncles, aunts and cousins,
  • Half-uncles, half-aunts and half-cousins.

In the situation that you pass away without a Will, your partner could face a costly and lengthy legal battle purely to remain in the home that you have built together and remain financially secure.  

Should I use an online service to write a Will?

It may be tempting to write your own Will using an online service, however this can be a complex area, especially if you have been married before, have children from a previous relationship or have a large estate and wish to explore other options such as setting up a Trust or a Life Interest Trust Will.  A legal professional will discuss the implications of your decisions with you, and also assist with any other planning, for example how to minimise the amount of Inheritance Tax that may be due on your estate.

Additionally, there are several ways that a Will could be deemed invalid, so receiving advice from a legal expert will not only assist you in understanding your rights and the best documents for you, but can also give you peace of mind that your Will is valid to protect your loved ones in the future.

Antoinette concludes, “With five million cohabiting couples in the UK according to the Office for National Statistics (ONS), it is crucial that those couples understand that there are no automatic rights to inherit from each other.  The last thing that you or your partner will need at a time of grief and loss will be additional worry about their home, their children and financial position.  We’ve seen situations where an individual has died and even though they had lived with their partner for decades, because there was no Will their property and assets passed to their extended family members, sometimes estranged family members.  There really is no simpler way to secure and protect yours or your family’s future than to have a Will in place.”

To discuss having your Will written by Antoinette or a member of the Private Client team, you can contact us today on 01329 222075 or email privateclientenquiry@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.