When two people who are neither married nor in a civil partnership begin living together, it’s unlikely that their thoughts will immediately turn to matters such as who they want their worldly possessions to go to. There’s often the assumption that, due to the fact they are cohabiting, everything they own will automatically pass to the other on death. However, as there is no such thing as “common law marriage” in the UK, this is often not the case, and many cohabiting partners run the risk of not being provided for to the extent they would expect, regardless of how many years they have lived together with their partner.

This isn’t to say there is no opportunity for automatic succession. Assets that are jointly owned will pass to the surviving owner automatically, irrespective of the existence of any Will (known as the concept of “survivorship”). But this only applies to things such as the family home where the couple in question are registered on the title as joint tenants (as opposed to tenants in common), or for bank or building society accounts held in both names. These may represent only a fraction of a person’s estate, and should one half of a couple die without them having a valid Will in place, this is when problems arise.

When somebody dies without making a Will, the succession of their assets is determined by the rules of intestacy whereby the distribution of a person’s estate is dependent on which members of the intestate’s family survive them. Under the rules of intestacy, the estate is distributed in a pre-determined order. So the deceased’s spouse along with any children are given priority, followed by children alone, then parents, then siblings, and then other family members.

Notably absent from this order of succession are cohabitants who are not married or in a civil partnership. For assets held in their sole name, if the cohabitee dies without making a Will, the cohabitant’s partner will have no entitlement under the intestacy rules. The cohabiting partner loses out, regardless of how long they may have been living together, and while there exists a possible recourse with a claim under a particular provision, such claims are often lengthy, costly and place a significant burden on the cohabitee to prove a case for reasonable financial provision.

So in short, couples living together really should urgently look to put in place a Will to ensure that the person or persons they want to inherit their assets do so in the event of their death.

Whether you are taking the first steps towards building a life together, or have been married or in a civil partnership for years we can help you plan for your future to ensure the people you care about most are provided for on your terms.

To make an appointment with our Wills, Estate and Probate Planning team, call now on 01722 412000.

Our contributor

Andrew Marshall

Paralegal

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