WillsCohabitants – What Are Their Succession Rights?

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Changing attitudes in our society mean that many couples are choosing not to marry or enter a civil partnership. This means the number of unmarried couples living together has risen to 3.3 million in 2017. Marriage and civil partnership provides an array of rights between spouses and civil partners.  But what exactly are the rights of cohabiting couples when it comes to death and inheritance?

There is a pervasive myth of ‘common law marriage’. This is the belief that if you have been living together as a couple for a number of years (usually 2, though the figure varies) you are treated as ‘common law spouses’. While some jurisdictions do have a concept similar to this, England & Wales is not one of them. In short if you are not married to your partner you have no automatic right to inherit from their estate if they die without leaving a will.

Where a person dies without a valid will the rules of intestacy (Intestacy Article) dictate how their estate will be distributed. In the case of a couple who are married and have no children the surviving spouse will inherit the whole estate. If they also have children then the spouse will receive the first £250,000 and half of what remains, with the children taking the other half. If a couple is unmarried then their surviving partner will receive nothing.

There can be some recourse though. An unmarried partner who finds themselves left out because their partner has died without a will may be able to apply to the court for provision under the Inheritance (Provision for Family and Dependants) Act 1975. This Act allows certain categories of people to apply for provision from an estate when a deceased person’s will or inheritance failed to make ‘reasonable provision’ for them. A cohabitant is one of these people provided certain conditions are met.

A cohabitant can apply for provision as ‘a person living as the spouse or civil partner of the deceased’. To qualify they must have been living in the same household as their deceased partner, as though they were their spouse or civil partner, for the 2 years immediately before their death. This 2 year period must also be unbroken apart from reasonable exceptions such as illness requiring hospital care.

If you are cohabiting with your partner and wish to make sure that they inherit from your estate you should make a will.

Succession rights for cohabitants written by Siobhan Rattigan, Senior Lecturer for the College of Will Writing.

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