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The Common Law Spouse - It's A Myth

If you are an unmarried couple that are cohabiting, and do not yet have a Will, then it could be time to consider your position.

A Common Law Couple

If you are an unmarried couple that are cohabiting, and do not yet have a Will, then it could be time to consider your position.

Many people believe that there is such a thing as a common-law spouse and believe that cohabitors still have the same rights as they would if they were actually married. Unfortunately, this is not true and, on the death of one of the couple, the intestacy rules do not recognise the relationship between them.

It does not matter how many years two people have spent together cohabiting, or how many children they have together, it is still a fact that, should one of them pass away, their assets and estate will not automatically pass over to the other. This could have serious consequences for the survivor as they could be left with absolutely nothing.

More than ten years ago, the Law Commission recommended that cohabitants who meet certain criteria should be given an inheritance automatically on intestacy. However, nothing has been taken further on this and those recommendations have not been acted upon. This means that it is essential that all unmarried couples ensure they write a Will if they want to provide for their partner after their death.

As it currently stands, surviving spouses or civil partners will automatically receive an inheritance, even if there is no Will in place. This might be the entire estate but this depends on the value and other family circumstances. For those who are cohabiting, then the surviving individual will only benefit from the estate if there are assets held as joint tenants (see below) or if an application to the Court to claim an inheritance is successful.

Should a home be owned by a cohabiting couple, then it is worth considering the status of your property. There are two different forms of co-ownership in the UK and the first is known as joint tenancy.

This means that the property is owned equally and will therefore be inherited by right of survivorship, so when one owner dies, it will be passed automatically to the other. The second form of ownership is tenants in common. This is where each owner owns a share of the property that is either equal or a certain percentage. In this situation, the share of the person who passes away will pass to their beneficiaries through a Will or via the intestacy rules which means that it will not go to the surviving owner.

It is therefore important to understand that any house that is jointly owned as opposed to being owned by tenants in common will automatically pass to the surviving partner. If a property is owned through sole ownership then the house will be distributed in accordance with the intestacy rules should a Will not be present.

Whatever your circumstances, having a Will in place is the only way to ensure your assets will end up with the people that you want to inherit.


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