No legal protection for cohabiting couples

The fastest rising living arrangement in England and Wales is the cohabiting couple family; this has more than doubled from 1.5 million families in 1996 to 3.3 million families in 2017*. Cohabitation has its advantages but it certainly doesn’t provide legal protection. Due to a lack of public awareness, there is, the perhaps, mistaken belief, that a “common law” spouse has the same entitlement as a married spouse or civil partner.

Unfortunately when it comes to succession law, in England and Wales this is not the case and increasing numbers of families are finding themselves in difficulties. Especially when combined with the fact that 61% of the adult population of England and Wales do not have a legal will**.

If a member of a cohabiting couple dies without a will, their estate is classed as intestate and divided in accordance with the Rules of Intestacy. The first class that can inherit an intestate’s estate is any surviving spouse (for example, the husband, wife or civil partner). Even then they are not guaranteed to inherit the whole estate as if there are children then they may be entitled to a proportion of the estate. If there is no surviving spouse or children then the estate is divided according to law between various members of the deceased’s family.

As the law currently stands, the ‘common law’ spouse has no entitlement under the intestacy rules. Unfortunately, this does not concur with public perception. Recent research has shown that 90% of the adult population of England and Wales are not aware of the Rules of Intestacy and how they operate which in turn encourages the above belief.

We have seen several cases recently where the surviving cohabitee has received nothing from the estate and the beneficiaries have been the children from a previous relationship who don’t get on with the surviving cohabitee. This has caused family disharmony.

A recent example that highlights this growing issue is as follows:

  • A was married to B and they divorced in August 2016 and they had two children together C and D
  • In September 2016, A met E and they bought a house together in January 2017
  • They bought the property as tenants in common (i.e. they each have their own shares in the property)
  • A and E lived at the property with C and D
  • A died in June 2018 without a will

Under the rules of intestacy, the beneficiaries of A’s estate would be his children C and D; this poses several issues:

  • C and D would inherit their father’s estate at age 18 (or earlier if they were to marry under the age of 18)
  • A’s half share of the property would fall into his estate and not to E
  • E would receive nothing from the estate
  • C and D would now live with B as she has parental responsibility for them. This may not be ideal if they saw E as a mother figure
  • B would be responsible for administering A’s estate. She would be entitled to force E to sell the house or “buy” A’s share out

You can see from this example that many problems can occur and matters can be made worse if B and E have a complex relationship. This scenario may not appear to be fair however; A had the opportunity to prevent this from arising by making a will. The terms of the will would have been able to provide for E whether outright or in trust and A would have been in a secure position to ensure that C and D received their inheritance in the future.

This is just one of the many examples we are seeing as common practice and highlights the scourge of ‘will apathy’ that permeates today’s society.

The importance of wills cannot be underestimated and to avoid unnecessary difficulty, we recommend speaking to a wills specialist for further information.

Sources

ONS number of families in the UK continues to grow, with cohabiting couple families growing the fastest

** YouGov Wills and Probate research 2014


beresford_james
James Beresford, Partner

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