Cohabiting Couples are Not Automatically Entitled to Inherit

27 April 2018

Cohabitation (couples living together who aren’t married or in a registered civil partnership) is currently the fastest growing family type in the UK, with 3.3 million cohabiting couples recorded in 2017. Unlike married couples or those in civil partnerships, cohabiting couples are not automatically entitled to inherit by law (in England and Wales) if one person dies.

Common Law Marriage is a Myth

Many people mistakenly believe that they would be protected by ‘common law marriage’ and millions of couples who live together may be unclear on what would happen to the house if one of them died.

In research carried out by Direct Line Life Insurance, over a third of cohabiting couples didn’t understand what their legal rights would be if their partner died. 10% of the cohabiting couples surveyed mistakenly believed that they would automatically inherit their partner’s share of the house if they died. Unfortunately, it’s not quite that simple.

If you die without a valid Will in place, then everything you own (known collectively as your Estate) will be inherited in a very specific way by your next of kin under inheritance laws called the Rules of Intestacy.

These inheritance laws are strict and do not accommodate some modern family set-ups. For example, if you live with your partner but are not married or in a civil partnership, then your partner will not be recognised under the Rules of Intestacy.

What Happens to Your House when You Die?

What happens to the house depends on how you and your partner own it. If the house is owned in your sole name, then if you don’t have a legally valid Will in place, the house in its entirety will be passed in accordance with the Rules of Intestacy.

If you and your partner own the property jointly, then this is where it becomes slightly more complicated as there is more than one way to do this.

If you own the house as Joint Tenants, then this means that neither of you owns a specific share. Instead, both of you jointly own the property as a whole. In this situation, if one of the owners dies, then the legal ownership of the property will automatically transfer to the surviving co-owner.

However, if you and your partner own the house as Tenants in Common, then each of you will own an identifiable share of the property. Usually this is 50/50, but if, for example, one person has contributed more to the purchase price then percentages can be reflective of this.

In this situation, if one person dies without a will then their share of the house would not automatically transfer to the surviving owner. Instead it would pass into their estate and be inherited by their next of kin under the Rules of Intestacy. This could mean that the surviving owner now finds that ownership of their house is shared with relatives of their late partner.

How to Make Sure Your Share Goes to Your Partner

If you own a home with your partner as Tenants in Common, then one way to leave your share to your partner on your death is to make a Will.

In your Will, you can state your wishes clearly, ensuring that there is no uncertainty for your loved ones. The Rules of Intestacy will not come into play if you have a legally valid Will. Instead, the Will sets out exactly who should inherit what from you. 

You can state in your Will that you would like your share in the property to be inherited by your partner on your death. Your Will can also set out details of any other gifts (legacies) that you would like to leave to people and charities, and state who should inherit whatever is left over.

Your Will also provides an opportunity for you to set out any specific funeral wishes that you have, making things that little bit easier for your loved ones when the time comes.

Alternatively, if you own your home as Joint Tenants and you want to leave your share to someone other than the co-owners then you’ll need to change your ownership of the property to Tenants in Common and ensure that your will makes clear who you wish to inherit it.

Co-op Legal’s Will Writing specialists can discuss your particular circumstances to put in place a Will that’s right for you. Our services also include helping you to change ownership of your property from Joint Tenants to Tenants in Common.

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