Cohabiting couples and making a Will

According to the latest research from the 2021 Office for National Statistics Census, a growing number of couples are living together who are not married. However, it remains a common misconception that cohabiting couples have the same legal rights as those married or in a civil partnership.

If you are living with a partner and are not married, it’s important to know your legal position and take steps to protect yourself and each other.

Key takeaways

• If you are a cohabiting couple, especially if you have children, it is vital to make a Will. If you do not make a Will, the rules of intestacy will apply to your estate.
• If you were to die without a Will in place, your partner could make a claim on your estate.
• Unmarried couples are not going to receive the same treatment and benefits for Inheritance Tax as married couples do.

Do you need to make a Will if you’re not married?

Yes, if you are a cohabiting couple, and especially if you have children, it is vital to make a Will. If you do not make a Will, the rules of intestacy will apply to your estate. The law of intestacy sets out who should administer your estate, who will inherit it, and to what extent.

The rules of intestacy do not make any provision for unmarried partners. The only way you can make provision for your partner is to make a Will. You should consider:

• Who you want to administer your estate
• The appointment of guardians for children under the age of 18
• The extent you want your partner to benefit. Do you want to leave the assets outright or, for example, the right to continue living in your home?

If you were to die without a Will in place, a partner could make a claim on your estate. This can be expensive and cause a lot of stress for those involved.

Common law spouses – a common misconception

A common misconception is the idea that people who live together, especially those who have lived together for a long time, are “common law” spouses. This is the belief that, even though not legally married, a long-term cohabiting couple has a legal status similar to that of spouses, the assumption is that they would be treated like a spouse in the event of a death.

Can Cohabiting couples make a joint Will?

No – each person is a legal entity and therefore has to make their own Will.

Who is my next of kin if I am cohabiting?

In probate law, there is no legally defined terms for common law spouse or next of kin. If you are not married and you die without a Will, your partner will receive nothing as your entire estate will go to your blood relatives.

Intestacy rules

The intestacy rules are a rigid set of legal rules which dictate who inherits your estate if you die without a Will or if you have a Will but it is invalid.

Do unmarried couples pay inheritance tax?

Unmarried couples are not going to receive the same treatment and benefits for Inheritance Tax as married couples who benefit from the Nil Rate Band.

The key benefits of making a Will for unmarried couples

Writing a Will allows unmarried, common law and cohabiting partners to ensure that the surviving partner is provided for in the event of their death. This includes things like:

• Leaving your estate to your partner so that they’re financially stable – your estate can include things like property, bank accounts, savings and pensions.
• Naming your partner as the legal guardian of your children if they don’t already have parental responsibility.
• Writing funeral wishes so that your partner knows what you would have wanted.
• Leaving specific gifts or messages to your partner that could help them to grieve when you’re gone.

How we can help

At Osborne Morris & Morgan, we understand the sensitivities and emotions that can arise when discussing or thinking about making a Will.

Our experienced advisors are committed to providing long-term support and are always on hand to respond to any questions.

Whether you’re looking to prepare a fixed-fee Will, need advice on inheritance tax planning, or are trying to deal with a Will and property after someone has died, our team are here to help.

Call us on 01525 378177 or email info@ommlaw.co.uk to find out more.