Why You Need a Will if You're Not Married

side view of concentrated couple reading contract during meeting with lawyer in office

Although society has changed toward unmarried relationships, the law on Wills and estate planning hasn’t kept pace. That’s why if you are in an unmarried relationship, it is essential to understand why you and your partner each need a Will.

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Wills and unmarried relationships

If you are in an unmarried relationship, the law says that on your partner’s death:

If your partner dies without a Will and intestacy rules apply, then as an unmarried partner, you do not get a share of the estate. That means you could be left with nothing unless you can make a court claim against the estate.
As an unmarried partner, you can only bring a claim against the estate of a partner if your partner died intestate without leaving a Will, or they left a Will, but reasonable financial provision was not made for you in the Will, and you fall within one of two categories. These are a person who, for two years before the death of your partner, was living with the deceased as spouse or civil partner, although not married, or if you were being maintained by the deceased before the deceased’s death. That means to bring a claim as an unmarried partner, you either must prove a two-year relationship or dependency on the deceased.
The estate cannot claim any married relationship-specific inheritance tax or capital gains tax exemptions or allowances.

Wills and married relationships

When it comes to Wills and married relationships, unless you are a private client solicitor or have had advice from one, you probably won’t appreciate just what a difference a piece of paper makes, namely your marriage or civil partnership certificate.

If your relationship has the legal status of marriage or civil partnership, then as a spouse or civil partner, you have:

Intestacy law rights if your husband, wife or civil partner dies without leaving a Will, and
The right to bring a claim against your husband, wife or civil partner’s estate if they leave a Will but the Will does not make reasonable financial provision for you, and
Inheritance tax concessions as a spouse or civil partner, and
Capital gains tax exemptions on transfers between spouses and civil partners.

Common law spouses and Wills

As cohabitation is an increasingly popular form of relationship, and because many adults in the UK don’t have a Will, many people in unmarried relationships will be left in a financially vulnerable position on their partner’s death.

Some people assume that they won’t have this problem as they are a ‘common law’ husband or wife, or because they have been in a relationship with their partner for over three or five years. These are all myths. There is no legal concept of a common law husband or wife. In law, you are either treated as married or unmarried.

What happens if my unmarried partner dies without leaving a Will?

If your unmarried partner dies without making a Will, then their estate will pass under intestacy provisions. These are set out in statute.

The intestacy rules say that the deceased’s estate will pass to:

The deceased’s child, or if there is more than one child, the estate will be shared equally between the children (or their descendants). The child or children (or grandchildren) can get their inheritance when they reach the age of eighteen, or

If the deceased doesn’t have any children or grandchildren, then their estate will pass to their parents, or if the parents have already passed away, to any siblings, or, if none, to more distant relatives.

The intestacy rules can be challenged if you were in a cohabiting relationship for at least two years, or you were financially dependent on your partner, but that means court litigation against your children or your partner’s relatives.

What happens if an unmarried partner makes a Will?

A Will sets out who should receive an estate or be left a gift out of the estate. If your partner leaves their estate to you, then the Will makes things a lot less complicated and far less stressful. Instead of having to make a court claim, you are entitled to the estate or gift.

A legacy can only be challenged if another person successfully brings a claim against the estate. For example, saying the deceased did not have the capacity to make the Will at the time that the Will was executed because of a dementia diagnosis.

Will solicitors say that if you are in an unmarried relationship, it is best to have a conversation with your partner so that you both know where you stand and to make a Will so that you and your family are protected in case your unmarried relationship is sadly brought to an end by the death of your partner.