Cohabitees

Unmarried cohabitees lack the legal protection provided to those who are married or in a civil partnership. Consequently, it is essential to take expert legal advice to ensure that your partner is provided for after your death.

Rules of intestacy explained

If you die without a Will, the intestacy laws decide who gets what. In England and Wales, these laws do not provide for partners who are not married or in a civil partnership. This means that if you fail to make a legally valid Will, your partner could be left with nothing after your death.

Property rights

This is a particular problem where one person is the sole owner of the family home. If the owner dies, their partner would have no legal right to continue living in the property. He or she can even be forced to move out, if the beneficiaries of that property want to sell, or want to live there themselves.

The position is different for assets and property that are held as joint tenants, such as a joint bank account or a house. In this scenario, the asset passes automatically to the surviving joint owner, regardless of their marital status. The only proof you need to obtain full ownership of that asset is a death certificate.

Inheritance tax liabilities

However, jointly owned assets do not escape the inheritance tax net. Inheritance tax is payable on an estate for a single person with no children, where the value of the estate exceeds £325,000. Assets that have passed by survivorship are still part of the tax calculation and, as an unmarried partner, you do not qualify for the exemption that applies to gifts to spouses and civil partners.

Maintenance claims

It may be possible to bring a claim for maintenance, where an unmarried partner is not provided for under the intestacy rules. This is available to those who have lived with their partner in the same household as husband or wife for two years.

If successful, financial provision will be awarded for your maintenance. This is a weaker position than that of an actual spouse or civil partner, whose claim can extend beyond that which is required for their maintenance.

How to protect your unmarried partner

For all the above reasons, unmarried couples need to plan carefully for the future. There are legal devices that can protect your partner in the event of your death, while at the same time minimising the amount of tax that is payable.

Making a Will is an excellent place to start, as you can name your partner as a beneficiary, setting out exactly what you want him/her to receive following your death. You can also incorporate Trusts into your Will. This might be useful if you want to pass property to your children, but you want to ensure that your partner can remain living in the property for the rest of their life.

Property owners can sign a Declaration of Trust, assigning a percentage share of the house to one another. A professionally drafted declaration can allow for a variation of those percentages based on evidence of future contributions to improvements and capital payments to discharge the mortgage. This declaration is critical to understanding what belongs to the estate of a person who has died, and therefore, what sum falls within any inheritance tax calculation.

Get expert legal advice

Our expert solicitors deal with Cohabitation Agreements, Wills, Trusts and Declarations of Trust. We can discuss your personal situation with you, explaining how best to achieve your wishes. This is a complex area of the law, particularly for those who have complicated family arrangements. We offer tailor-made advice and will work to ensure that all your loved ones are provided for after you are gone.