How many cohabiting couples are under the misconception that they have legal rights as a so-called “common law spouse”? This term is often bandied about, but in fact has no legal meaning and it is not the default outcome for the surviving “common law spouse” to inherit when one of them dies.
Under English law, if a person does not have a valid will in place when he or she dies, his or her Estate (any assets capable of being transferred under a will or the intestacy rules) will be distributed in accordance with the intestacy rules; these rules do not provide for the survivor of a cohabiting couple.
Under the intestacy rules, if the first cohabitee to die is also survived by children, his or her Estate will be given to those children outright at 18; if there are no surviving children, the estate will be given outright to the deceased’s parents (or, if they have also died, to his or her siblings). Although the surviving cohabitee may be able to make a claim from the deceased’s Estate under the Inheritance (Provision for Family and Dependants) Act 1975, litigation is intrinsically stressful and expensive.
By putting a will in place you are able to choose:
• The people who will deal with your assets
• The people who will act as guardians for any minor children
• The people and/or charities to benefit and the amount - whether cash gifts, specific items and/or a percentage of your estate.
Cohabiting couples with valid wills in place should be aware that subsequent marriage or formation of a civil partnership will automatically revoke their wills unless the documents state that they are made in expectation of marriage or formation of a civil partnership.
We have looked after the affairs of our clients for generations and have a great deal of experience in this area of practice. If you require specific professional advice, please discuss with your usual contact in the firm or email the author at una.angus@ts-p.co.uk
