Nowadays we like to think that every type of relationship is valued and that whatever the nature or status of our relationship we are all treated fairly and without any form of discrimination. If you are in an unmarried relationship the world has changed from a generation ago where there was still a social stigma if you were unmarried or had children ‘out of wedlock’. Although the attitude of society has changed to unmarried relationships when it comes to the law on Wills and estate planning the law hasn’t caught up. That’s why it is essential that if you are in an unmarried relationship you understand why you and your partner each need a Will.
Wills and married and unmarried relationships
When it comes to Wills and married and unmarried 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 certificate 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
- The right to bring a claim against your husband, wife or civil partner’s estate if they leave a Will but the Will doesn’t make reasonable financial provision for you
- Inheritance tax concessions as a spouse or civil partner
- Capital gains tax exemptions on transfers between spouses and civil partners.
If you are in an unmarried relationship then on your partner’s death:
- If your partner dies without a Will and intestacy rules apply then an unmarried partner will not get an automatic share of the estate. That means you could be left with nothing unless you are able to make a court claim against the estate
- An unmarried partner can only bring a claim against the estate of their partner if the partner died intestate without leaving a Will or they left a Will but reasonable financial provision wasn’t made for them in the Will and they fall within one of two categories, namely, a person who for two years prior to the death of their partner was living with the deceased as spouse or civil partner although not married or if the unmarried partner was being maintained by the deceased prior to the deceased’s death. That means an unmarried partner has to either prove a two-year relationship or dependency on the deceased
- If an unmarried partner receives an inheritance or lifetime gifts there are no specific inheritance tax or capital gains tax exemptions or allowances.
As cohabitation is an increasingly popular form of relationship and because many adults in the UK don’t have a Will there are many people in unmarried relationships who 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 as, in the law, you are either treated as married or unmarried.
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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 and 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 his or her estate to you as you are in an unmarried relationship 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. The legacy can only be challenged if another person successfully brings a claim against the estate, for example, saying that your partner did not have capacity to make the Will at the time that the Will was executed by them 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 Wills so that you and your family are protected in case your unmarried relationship is brought to an end by the death of your partner.
Our Manchester and Cheshire Will solicitors
Evolve Family Law specialise in family law and private client law advice. For advice about a new Will or changing your existing Will call us or complete our online enquiry form. Evolve Family Law have offices located in Whitefield, North Manchester and Holmes Chapel, Cheshire but our private client and Will solicitors are experienced in working remotely and are offer meetings by telephone appointment or video call.