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12 February 2020

Cohabiting couples – do you need to make a Will?

Contrary to common belief, cohabiting couples do not automatically have a right to inherit their partner’s estate if they pass away without leaving a Will. It is therefore essential for cohabiting couples to create a Will if they wish to benefit each other on death.

Under the law of intestacy, which comes into effect when an individual dies without leaving a Will, cohabiting couples are not recognised in the same way as married couples. The intestacy provisions prioritise spouses, civil partners, children and siblings. Cohabiting couples do not have a right to any inheritance from the estate under these provisions regardless of the period of time they have been living together and whether or not they have children together. Not only may this be contrary to their wishes, it can also leave the surviving partner in financial difficulty.

The surviving partner of a cohabiting couple may in some circumstances be entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). A partner is entitled to make a claim under the 1975 Act provided they had been cohabiting as husband and wife for at least two years prior to the date of death. However there is no guarantee a claim will be successful and the process can be expensive and time consuming, adding a large amount of stress at an already difficult time.

Even though a cohabiting couple may own a property together, their right to inherit their deceased’s partner’s share of it is not guaranteed. A property owned as joint tenants will automatically pass to the surviving owner regardless of whether they are married. However if a property is owned as tenants in common the deceased’s share of the property will not automatically pass to the surviving owner. Their share will pass under the terms of their Will or the intestacy provisions where a Will does not exist. If a cohabiting couple own a property in this way it is essential that they make a Will if they wish for their partner to inherit their share of the property.

Writing a valid Will is vital if cohabiting couples wish to protect their financial interests and adequately provide for their partner after their death.

At Steeles Law we recommend that you take professional advice when making your Will to ensure a bespoke document is prepared which accurately reflects your circumstances and wishes. If you wish to make a Will please do not hesitate to contact the team on probate@steeleslaw.co.uk or 01379 652141.

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