Explained: The Common-Law Myth

What is worrying is that the people who are most in need of a Will, that is cohabiting couples, are among those least likely to actually have one.  

Are you a cohabiting couple? If so, have you made a Will? No? Then you really should do so.

Contrary to popular belief, there is no such concept in family law as a common law spouse – the idea that despite no legal marriage, cohabitees have the same rights as if they were husband/wife/civil partners. No matter how many years cohabitees have lived together, no matter how many children they might have between them, the fact remains that upon death, there exists no automatic cohabitee rights to their partner's estate. Moreover, in some circumstances, death can leave the survivor with nothing.

Over 10 years ago, The Law Commission recommended that certain qualifying cohabitants be given automatic inheritance rights on intestacy. Nothing has happened in this regard and they remain recommendations. What is worrying is that the people who are most in need of a Will, that is cohabiting couples, are among those least likely to actually have one.  

The law currently gives surviving spouses/civil partners an automatic inheritance in the case of intestacy. Conversely, cohabitants can normally only benefit from the estate if the courts (under the Inheritance (Provision for Family and Dependants) Act 1975) grants a discretionary award on the basis of need.

If you are a cohabiting homeowners, consider also the status of your property. There are two classes of co-ownership of property in the UK. First, there is joint tenancy ownership. This deems that the interest in the property is equal and that the property will be inherited by right of survivorship, i.e. when the co-owner dies, the other owner(s) will automatically own the deceased share. Second, there is tenants in common. This is where each owner has a definite share of a property, either equal or a split percentage. In a tenancy in common, the deceased person's share will pass to their heirs through a Will or through the intestacy rules and will not automatically go to the surviving tenant(s).

Thus, be warned, it is vital that any house owned jointly is held as joint tenants rather than tenants in common, in order for an automatic transfer to apply.

Property owned in the sole name of the deceased (including a share of any house owned as tenants in common) will be distributed in accordance with intestacy rules, in the absence of a Will.

The message here is that if you are not married/civil partners and you want to ensure your partner inherits something of your estate, the only way to guarantee this is to make a Will.

For more information on this or any other estate planning matter, contact: jules@40RTY.co.uk or call 07814 838 660