Jan 19

Unmarried couples and inheritance – the law


At our offices in Chichester, West Sussex and Alton, Hampshire we often hear of the term “common law husband or wife”, however it has no legal meaning or standing whatsoever. You are either married or you are not.

If you are not married and your partner dies without making a Will (‘intestate’) or making sufficient provisions for you in their Will then you, as the survivor, will have no right to any inheritance from his estate under the existing intestacy rules. This is despite how long you have lived with one another.

As unmarried couples are set to rise to 4 Million by 2033 this will affect many people, especially as much as two thirds of the population die without a Will at present.

Consider the following example: Mary and Jim have lived together in Chichester as a couple for 17 years. They have four children, two each from their previous relationships. Jim unfortunately dies without a Will and the property they lived in was is in his sole name. Mary assumes that the house will now belong to her and her children. However, because there is no Will the intestacy rules apply, these rules are strict.

Under the rules, Mary will receive nothing, neither will her two children, as they are stepchildren. Jim’s children will inherit his entire estate. This means that Mary and her children will have no home. This is, of course, disastrous and not what Jim would have wanted. Jim’s children may well agree to vary their inheritance and allow Mary and her children to stay in the house. This is, however, unlikely and a risk one should not take.

If Jim did not have any children then his estate would pass to his parents, if they were alive, or his siblings if his parents were deceased. Mary would still not benefit. This is not what Jim would have wanted.

Consider another example whereby Jim happened to have been married but never divorced, as he didn’t feel the need to. Under the intestacy rules all his assets would pass to his spouse in this instance. Again, this is not what Jim would have wanted and certainly not what Mary thought would happen. Jim’s estranged wife may say she doesn’t want Jim’s estate. In practice this is unlikely.

It is possible for the surviving partner to apply to the Court to make a claim against the estate for financial provision but this is costly and time consuming and stressful to say the least.

Changes are hoped to be made to the law to give certain unmarried partners who have lived together for five years the right to inherit on each other’s death under the intestacy rules. Where the couple have a child together, this entitlement would accrue after two years’ cohabitation, provided the child was living with the couple when the deceased died. Nothing has been implemented as of yet, however, and changes can take many years to finally be implemented.

The only way to protect your loved ones is to make a Will. Most people only require a simple, standard, Will and the process is very straightforward.

We offer free initial consultations for anyone wanting advice on making a Will.

Call our Chichester office now on 01243 850860 or our Alton office on 01420 544273 now to book an appointment without any obligation.