Dear Ade,
What are the cohabiting couples’ inheritance rights?
My partner and I have been together before my son who celebrated his twentieth birthday last weekend was born. He has a daughter from a previous relationship. I’ve always believed we were in a common law marriage, but my best friend says there’s no such thing as a common law marriage.
We agree on the fact we are in a blended family, but she says as my husband earns three times as much as I do (I stayed at home to look after the children) and the family home is in his name, I am on dodgy ground as I don’t know how to go about wills for unmarried people.
Are we in a common law marriage? And what are my rights as a common-law wife?
Thanks, Jo
Dear Jo,
On the matter of the inheritance rights of cohabiting couples, we’ll start with a minor point. I know what your friend means by: ‘there is no such thing as common law marriage’. There is such a thing as common-law marriage, but not in the sense of a cohabiting couple.
So, for the sake of simplicity, let’s agree: there is no such thing as common-law marriage.
Cohabiting Couples’ Inheritance Rights – Intestacy?
We then alight on the matter of inheritance rights. Whisper it gently, there’re no such thing as inheritance rights in English law. I’ve discussed intestacy elsewhere on this site. The rules of intestacy are simply wills for people who don’t get round to writing wills for themselves.
As we’ve seen elsewhere, intestacy is expensive and wicked. Intestacy rules are an instrument to enforce the social construct that is marriage.
Cohabiting Couples’ Inheritance Rights – Testamentary Freedom
In England and Wales, there is the supremacy of the principle of testamentary freedom. Testamentary freedom means like it sounds. You are free to leave your estate to whomever you please.
But not so fast.
The principle of testamentary freedom means you’re free to leave your estate to whomever you please, but you must make reasonable provision for certain people. You no doubt spotted the subjective word in the last sentence – reasonable.
I apply the principle of testamentary freedom thus – you should look after in death, the people whom you looked after in your lifetime.
The rules of intestacy as beggarly and inadequate as they are offer scant protections to spouses – these protections, notwithstanding the extent to which they should not be relied upon, are not available to cohabiting partners.
Further, inheritance tax rules confer certain advantages to people who are married or in civil partnerships – these advantages are not open to people in any other sort of relationship.
How do you know you’re getting old? When you bump into younger relatives at family gatherings and you find yourself saying: ‘when are you getting married?’. My question to you is not ‘why aren’t you married?’, but rather: ‘why don’t you treat your potential inheritance to each other and the rest of your families as if you were serious about this matter?’
Unmarried Couples’ Inheritance Rights – Like the Monster of Loch Ness
Married couples and civil partners inheritance rights don’t exist.
Cohabiting couples’ inheritance rights don’t exist.
Unmarried partners rights after death don’t exist
Thes rights are like the Monster of Loch Ness, they don’t exist.
Rather than relying on the rules of intestacy, I would advise you and your partner decide how you wanted your respective estates apportioned on the death of the first of you, and on second death.
You’d need to decide what provisions if any you wanted to make for your different sets of children. You’ll need to decide how much of your money you wanted to go the government. You’ll simply have to abide by my interpretation of the principle of testamentary freedom by which the people whom you looked after during your life should be provided for after your death.
Such matter as ‘my partner has died can I stay in the house?’ are as you wish them.
All of these matters are within your control.
If you need help with these decisions, if you need help to come with what is fair, if you help to cast your decisions into a legally and financially sound form, simply book your free discovery call.
Best Wishes,
Ade
