Contrary to popular belief cohabitees (an unmarried couple living together) do not automatically have the same rights as those who have chosen to marry or enter into a civil partnership. You may have heard the term “common-law husband” or a “common-law wife” used however, there is no such thing.

Research by the National Consumer Council has found that just 17% of cohabitants have made a Will. The current alternative to making a Will is that the intestacy rules determine how your estate is divided and depending on the family circumstances this could result in an inheritance by parents or siblings rather than a long term partner if unmarried. For the surviving partner of a cohabitee, a distribution under the intestacy rules can often result in very expensive and lengthy litigation as your partner is able to make a claim against your estate under The Inheritance (Provision for Family and Dependants) Act 1975 to try and get what they feel they deserve. At a time when they should be able to grieve they have to try and navigate their way through the courts for an award that you may have intended them to have in the first place. The intestacy rules are essentially a fall back provision and more often than not do not give an outcome which reflects the wishes of the deceased.

Despite proposals for rights to be extended to cohabitants so that the law reflects the choice many couples are making; to live together and not marry, the recent changes to the rules of intestacy have not addressed this issue. Cohabitees, whether they have children together or not, continue to have no automatic rights to their partner’s estate if they die without leaving a Will.

A Will can allow you to make provisions for those you care about the most and set out who you want to leave your property, money and other assets to in order to ensure those closest to you are protected and cared for in the long term. It is also an opportunity to choose your children’s guardians in the event of your death and ensure that a balance is reached between providing for your partner for the rest of their life and ultimately securing the passing of your estate on to your children.

A Will can also be used to mitigate liability to inheritance tax on death as this is another area where cohabitees can be at a disadvantage. Whilst, married couples are able to pass their estates between each other tax free and fully utilise both of their tax free nil rate bands on the second death, this option is not extended to cohabitants which means that good advice and financial planning is all the more important for those who choose to cohabit.

To discuss the possible risks to your estate and find out how you can protect yourself, your partner and your family contact Solicitor, Emma Green today.