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The importance of Cohabiting Couples making Wills

View profile for Emma Johnson
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Couples who live together are often under the impression that they have the same legal rights upon death as couples who are married, unfortunately for them this is a myth!

Unmarried couples who live together, whether it is for 30 days or 30 years, have no legal right  to receive a share of their partner’s estate upon death and this is why making a Will is arguably even more important for couples who decide not to marry.

According to the Office of National Statistics, cohabiting couple families were the fastest growing family type between 1996 and 2016, and as such with more and more couples making the decision to cohabit rather than marry, the only way that they can ensure their estate passes to their loved one is to leave a Will.

If you die without leaving a Will, the Intestacy Rules shall apply to your estate. The Intestacy Rules make no provision for cohabiting couples and ultimately this shall mean that the partner which you live with shall not receive anything from your estate. Depending on the family which you have at the time of your death, this could mean that your estate could pass to family members who you would not have chosen to receive any benefit from your estate.   

The only exception to this is if you own any joint assets as beneficial joint tenants. Such assets shall pass automatically to your partner by survivorship. However, it is unlikely that all of your assets shall be owned in this way and as such some of your assets may still pass to family members who you would not have wished to benefit from your estate.  

As well as a cohabiting partner not receiving any benefit from your estate, they shall also have no right to deal with the administration of your estate. As well as determining who receives the benefit from an estate, the Intestacy Rules also determine who has the legal right to administer an estate where there is no Will. Instead, if you have made a Will you have full discretion to choose who you wish to administer your estate, and this could be your cohabiting partner if you choose. 

In the event that you do not leave a Will and your partner is left with no provision under your estate, this could lead to them having to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in order for them to try and receive some provision from your estate. Although this does mean that there is an opportunity for your partner to attempt to receive some financial provision, this can be a highly litigious and expensive process and something which could be avoided by simply ensuring that a Will has been made outlining who you wish to benefit from your estate.

There are therefore numerous reasons why it is extremely important to consider making a Will when you are in a cohabiting relationship, the main incentive being to ensure that your partner receives the provision which you would want them to receive, rather than the Intestacy Rules dictating this for you.

If you require further advice in respect of making a Will please contact a member of our Private Client department at any of our Chattertons offices.

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