The importance of making a Will for unmarried couples

Our advice is simple, everyone should make a Will, no matter the size of their estate. Not only will having a properly drafted Will give you the peace of mind that your wishes will be respected but it will also make the situation much easier for your loved ones who will be comforted by knowing what you would have wanted and can act in accordance with your instructions. 

If you die without a Will you are said to have died “Intestate”. In this situation the Rules of Intestacy will kick in to set out what will happen to your estate on death. If you are married then your spouse will be provided for under these rules (although it may not be in accordance with your wishes). However, for unmarried couples the Intestacy Rules make no provision, no matter how long they have been living together or whether they have children.

Many people use the term “common law spouse”, this actually has no legal meaning and so in the absence of a Will, unmarried couples have no rights to inherit from their partner’s estate. 

For example, in the case of an unmarried couple who have lived together for 20 years with no children, having never made Wills as they mistakenly believed that their estate would pass to the survivor as they have been together for so long. Under the Intestacy Rules, their estate will likely pass up to their parents if they are alive or if not to their siblings. This is unlikely to be in accordance with their wishes and may well leave the surviving partner in a very difficult financial, not to mention emotional situation.

This could have been avoided very simply by the couple making Wills which provided for each other.

In this situation it would be possible to vary the outcome of the Intestacy Rules if all the people entitled to inherit are over 18, of sound mind and agree to vary the outcome giving some or all of the estate to the surviving spouse – in our experience this is very unlikely to happen.

The other option open to the surviving partner would be to make a claim against their partner’s estate. This is known as an “Inheritance Act claim.”

The claim needs to be made within a certain time of the death and naturally this will come at an upsetting and stressful time – the prospect of starting a court claim will likely be a very unwelcome prospect for the grieving partner. 

Litigation is always uncertain, usually expensive and often a lengthy process and in these situations should be avoided at all costs. 

There are certain criteria which must be met in order to make a claim which include having lived together as husband and wife for two years immediately before the death. If no settlement can be reached a judge will decide what, if any, provision should be made for the partner from the estate, which will leave the surviving partner in a state of emotional and possibly financial limbo.

There are other considerations for unmarried couples one of which is Inheritance Tax. There is no Inheritance Tax exemption for unmarried couples as there is for those who are married or in a civil partnership.  If your estate is above the Inheritance Tax threshold (which is currently £325,000) there will potentially be an Inheritance Tax liability on your death. Whilst making a Will may not necessarily change that, taking advice from a Solicitor who specialises in Inheritance Tax and succession planning will at least allow you to consider ways in which to mitigate that tax bill or at least be prepared and plan for it. 

A further consideration is life insurance and pension policies, again unmarried couples have no automatic right to inherit their partners’ policies. We would suggest you take advice on this at the same time as making your Will. 

A specialist Solicitor will take time to discuss your family, assets and your personal wishes and priorities before advising you and drafting your will.  They will also take time to go through the Will with you at a second meeting to explain the meaning of the document and check that you fully understand it before arranging for you to sign it with witnesses. Our Estates Team at Prettys will also arrange for your Will to be stored in our secure strong room.

Our costs for a straight-forward Will are £250 plus VAT. If your situation is more complicated then we will discuss and agree our costs ahead of preparing your Will. If you would like an appointment or to discuss this further, please call us on 01473 232121 and ask to speak to our Estates Team.

Expert
Laura Parker
Associate