Rights of Cohabitees & Implications Of Marriage & Divorce | Wills

Marriage / civil partnership, divorce, and cohabitation. Many people in England and Wales will be able to relate to at least one. However, whilst most would see these words as an expression of someone’s romantic life, it is important to understand the legal implications of them, particularly when it comes to your estate after death.

Marriage and civil partnerships

Dealing first with marriage / civil partnerships, it will come as no surprise that, in the event you pass without a will (also known as intestacy) surviving spouses / civil partners are currently afforded the most rights under the law. However, these rights may not be suitable for many couples.

When a person dies without having made a valid will, they are deemed to have died intestate. Under the rules of intestacy, a surviving spouse or civil partner will be entitled to the first £322,000 of a person’s estate along with their personal possessions. However, the remainder will be split 50:50 between the surviving spouse / civil partner and any other entitled beneficiaries such as children, parents, or siblings, depending on a person’s family circumstances. This is important to remember as many people may have an estate worth more than £322,000 and, in these circumstances, they may want the entire amount to pass to their spouse / civil partner, especially as it may mean that in order for the other beneficiaries, in the event of intestacy, to realise their share of the inheritance the matrimonial home may need to be sold.

There may also be reasons that you would not want certain family members to inherit part of your estate and, without appropriate wills and estate planning, the rules of intestacy may mean that your estate passes against your wishes.

Of course, it is also possible you may not wish to leave any of your estate to your spouse / civil partner and if this is your intention, it is crucial that a will is made.

It is also important to consider that any will made prior to a marriage / civil partnership would be rendered invalid, following the marriage or civil partnership, as this revokes any previous will. This of course would then mean that unless a further will was made, upon death the intestacy rules as outlined above would apply.

Inheritance tax and marriage or civil partnership

Another important legal implication of a marriage or civil partnership is that of inheritance tax. This is because unlike cohabiting partners, spouses and civil partners are able to claim an allowance against any gifts passed to them by their deceased spouse / civil partner in lifetime and after death. This could therefore potentially avoid an inheritance tax liability. This is important to consider as, in the case of cohabiting partners for example, an inheritance tax bill could require assets such as the main residence to be sold, to cover a tax bill.

With regards to divorce, if a current will included a divorced spouse and the will was made prior to the divorce, then upon death the included divorced spouse would be treated as having predeceased the testator at the date of divorce and would therefore be unable to inherit; the gift would be treated as if it has failed.

Divorced spouses

Once again in the event your intention is to continue to leave a part of the whole of your estate to your divorced spouse or civil partner, a new will would be required to achieve this, otherwise your estate will pass to other beneficiaries or even fall under the rules of intestacy if no alternative provisions are made in your will.

Cohabitees

Finally, with regards to cohabitees, unfortunately and contrary to popular belief, the concept of a common law spouse is not one recognised in English Law. Therefore, without a will leaving your estate to your cohabiting partner, upon death they will not be included as a beneficiary under the rules of intestacy and may, therefore, be left with nothing. At best it may be possible for them to make a claim for reasonable financial provision, but this will likely be limited in comparison to the size of the estate.

The importance of a will

In conclusion, the overarching point to reflect on is that, without a properly drafted will, what happens to your assets and your estate may be determined by statute and the provisions of the intestacy rules.

For many people their intentions will differ from the statutory provisions and, therefore, in order to best protect your estate and your loved ones, it is important to accurately record your own intention in a will with the help of a qualified legal representative.