Wills + Probate: Wills and Cohabiting Couples

With Spring in the air, we start to think about the typical wedding season approaching – or are we?

There has been a 144% increase between 1996 and 2021 in cohabiting couples*. Whilst this shift in society is interesting and possibly reflects the current attitudes to marriage and civil partnership, it also poses some potential issues if cohabiting couples do not seek the right advice.

If you are not married or in a civil partnership, it is important to make a Will. The Intestacy Rules do not protect a cohabitee like they do a spouse or civil partner. This could lead to all sorts of problems should one person pass away and assets not automatically passing to the surviving cohabitee.

Make a Will to protect your children

Given the rise of blended families, it is also essential to make sure you have a Will that provides for legal guardians of any minor children together with any assets that you would like to ensure pass to your children.

A Will can be made in contemplation of marriage or civil partnership but a Will does not get automatically revoked if you separate from your cohabiting partner. The position is different if you marry and subsequently divorce, then upon receiving the decree absolute, the former spouse is treated as having predeceased for the purposes of a Will. This position is not automatic for cohabiting couples separating. If you have a Will, then it is important to review it regularly.

Jointly owned property

You and your cohabiting partner may own property together. If so, do you know how you own it? This may sound like an odd question, however, this is important to know. If you own your property as tenants in common, then the property does not pass to one another automatically by survivorship. You may own a property as tenants in common if you have made a Declaration of Trust to reflect an uneven contribution of the purchase monies. If the worst did happen, you could not rely upon the Intestacy Rules.

The only protection afforded to a cohabiting partner is after the period of two years of living together, then they gain the ability to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, this is not all that adequate, as to bring a claim can cost many thousands and is usually privately funded. The costs definitely outweigh the fees for drawing up Wills.

Inheritance Tax

If you have made Wills, it is also important to think about Inheritance Tax. Cohabiting partners do not receive the spouse/civil partner exemption for Inheritance Tax, which means that any assets above the Nil Rate Band allowance of £325,000 are likely to be subject to Inheritance Tax which is currently 40%.

‘My advice would be to make a Will, in order to protect each other in the event of the death of the other. Within that Will, I would include a contemplation of marriage/civil partnership clause in order that the Will can continue to be valid should you decide to marry or enter into a civil partnership in the future. Wills are incredibly important documents and they can even provide for legal guardians of any minor children you have, which Intestacy Rules do not provide guidance on. Wills are there to provide clarity should the worst happen.’

We are here to help with friendly advice and fixed fee Wills

If you wish to find out more about how to make a Will, please contact Laura or any of her colleagues for an informal free initial chat on how you can still best protect your current legal position. Contact can be made by calling our office on 01761 414646 or our website at th-law.co.uk.

*According to the Office for National Statistics’ 2022 bulletin