Common Law Marriage
In 2021 there were around 3.6 million cohabiting unmarried couples – an increase of 144% since 1996. Many consider that they are in a ‘common law marriage’ however this is not recognised in UK Law. Legal issues to consider vary from housing and property, immigration issues, parental rights and, of course, inheritance.
Inheritance for unmarried couples
I often see couples who have lived together for years and have not put any thought into making their wills. They are shocked and surprised to find that if one of them had died then the other would not have an automatic right to inherit any part of their partner’s estate.
Without a will, the intestacy rules dictate who inherits after death. Under the intestacy rules there is no provision for a cohabiting couple – and the intestacy rules apply no matter whether you have lived together for 6 months or 10 years!
Unless a will is made providing for a partner, the person left would have to consider another route to be provided for, either by seeking a variation of the estate (which would require consent of all actual beneficiaries), or a claim through the Courts. This can lead to legal proceedings to seek reasonable provision from the estate, which can be costly and very stressful. The consequences of being left in this position can vary from not having access to enough money for day-to-day expenses, uncertainty as to housing and rights, and this comes at a time when they are coming to terms with the loss of their loved one.Even if a claim is brought, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 also sees unequal treatment of unmarried couples, for a spouse or civil partner can seek broader reasonable provision, whereas a ‘common law’ partner can only seek what is reasonable for their own maintenance.
A change in the law?
The Law Commission recommended in 2011 that the intestacy rules should apply to couples who had lived together for at least 5 years prior to death, or 2 years where the couple had a child together.
This has never been put into effect, and last year the Women and Equalities Committee called for the immediate implementation of this which was rejected by the Government, who said that a cautious approach would be taken to any reforms.
There is also a disadvantage to unmarried couples when it comes to inheritance tax. If married or in a civil partnership, anything passing to the spouse or civil partner on death is free of inheritance tax. On the second death, the estate will be able to make use of the individual tax free amount, and any unused tax free ‘nil rate band’.
Cohabiting couples cannot use the same tools and with inheritance tax rates at 40% of anything over the tax free amount – this can have a large impact on the eventual beneficiaries.
What can you do?
If you are living with a partner it is essential that you both make wills.
The will allows you to appoint each other as executor (the person in charge of dealing with the estate) and beneficiary of all, or some, of the estate.
Your Solicitor will also advise you in relation to any Inheritance Tax issues.
A Solicitor can also provide different solutions where there are children of the same or from previous relationships, to ensure that each person who should be provided for, is.
If you have lost your partner and are not married, you can also seek provision from their estate. The timescales are strict in relation to when action can be taken so it is essential that you seek legal advice as soon as possible.