Death + cohabitation: what happens to the house?
Many people believe that unmarried couples should be recognised in law and that legal rights for cohabitees should be improved.
The family unit has developed, cohabitation is common place and many modern relationships don’t involve marriage. But if your cohabitating partner dies without a Will and you’re unmarried, what would happen to their estate under current rules?
There are more than 2m unmarried cohabitating couples in the UK and this number is rising. Whilst there is no official figure on how many of these die intestate – i.e. without having a will in place – the number is likely to be significant. So when one member of a cohabiting couple dies, it can come as a surprise that the deceased’s estate does not pass to the other when there is no Will.
The reality is that the legal status of ‘common law’ spouse is a myth; that’s why it’s so important for people living together to give serious long-term thought to protecting their financial position.
So how you can protect yourself?
If you and your partner decide not to get married, there are still several ways in which you can each protect yourself from a legal perspective.
Writing a will
Firstly, as a cohabitating couple, it’s essential that you both write a will. This is because the law of intestacy – or dying without a valid will in place – does not recognise cohabitation in the same way it recognises marriage.
Without a will, you may find that your partner’s estate is passed to their relatives and not distributed as they would otherwise have intended. Writing a will is the only way to ensure that your final wishes are carried out fully.
By drawing up a cohabitation agreement between you and your partner, you can specify what happens to your property and any other jointly-owned assets if you separate or one of you dies.
Joint tenants or tenants in common
There are two ways in which to hold property jointly with another person: joint tenants or tenants in common.
Most couples who buy a house together do so as joint tenants, meaning that if one partner dies, the property automatically goes to the survivor and doesn’t pass under the terms of their will or intestacy.
If the property is held as tenants in common, each partner has a distinct share. Unless there is agreement in writing to say otherwise, this share is assumed to be 50/50. If one partner dies, their share will form part of their estate and pass under the terms of their will or intestacy.
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Many unmarried couples aren’t aware that they have no automatic entitlement if their partner dies without a will, whilst the intestacy rules fail to recognise the changing needs and requirements of the modern family.
If you’re a cohabiting couple, we strongly recommend speaking to our experienced will solicitors in Bristol. Our experienced team has a wealth of experience in preparing a range of wills, from the most straightforward to those involving complex trusts.
We also offer secure storage of any new wills drafted by us, free of charge.
Our family team can offer advice on drafting a cohabitation agreement; whilst our specialist residential conveyancing team can help you buy your property as joint tenants or tenants in common.
To speak to a member of our team about protecting yourself from the impact of the death of your cohabitating partner, contact us on 0117 325 2929 or complete our online enquiry form.
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