The Importance of Wills for Cohabitees
Solicitor Apprentice Becky Shale considers this significant topic.
Despite common misconceptions, cohabitees are not afforded the same rights as married couples or civil partners. The disparities are particularly significant when considering property ownership on the death of a cohabitee.
The Commons Library indicate that 22% of couples living together in 2021 were neither married nor in a civil partnership and these arrangements are on the rise[1]. Cohabitees protecting their legal interests is, therefore, becoming an increasingly significant issue.
There are different ways to own property together, either as joint tenants or tenants in common. These types of ownership affect how your property will be divided when you pass. For those who own their property as joint tenants this is simple as the property will pass in its entirety to the surviving owner. This same rule does not apply to those who own as tenants in common.
It is essential to discuss how the property is to be owned at the time of purchase to ensure cohabitees come to an informed agreement which protects the individual interests. This might be that you own your home in equal shares, or, particularly where differing contributions are being made, in unequal shares. Where you choose to own your property in unequal shares, a Declaration of Trust is advisable to set out the shares owned by each party.
Without a will, the share of the property owned by the deceased will pass with the rest of their estate under the rules of intestacy. There is a myth that cohabiting creates “common law spouses” with similar rights to married couples and civil partners. Unfortunately, the current law does not provide that the surviving cohabitee will inherit the share of the property owned by the deceased where cohabitees are neither married nor civil partners.
The rules of intestacy essentially mean that, unless you write your own will to reflect your wishes, your estate will be divided under a standard government formula. This will mean your estate passing to your children, or, your parents.
This can be detrimental to cohabitees. Where the property is owned in the sole name of the deceased, the surviving cohabitee may be left without a home. Even where the property is owned in equal shares, the surviving cohabitee may not be able to afford to own a property without the help of their deceased partner.
It is important to consider that, while there may be legal recourse available under the Inheritance (Provision for Family and Dependants) Act 1975, this can be costly, uncertain and emotionally taxing.
A will is an invaluable tool to protect your wishes and provide for your cohabitees after you pass. For example, those with children from previous marriages, may wish to use a will to allow their cohabitee to continue to live in the property, but ultimately, for their children to inherit the capital from their share. This advanced planning can ensure your intention will be administered and provide certainty for your cohabitee.
[1] UK Parliament , ‘“Common law marriage” and cohabitation’ (House of Commons Library, 03 November 2022)<https://commonslibrary.parliament.uk/research-briefings/sn03372/> accessed 4 February 2023
For advice on private client matters, contact Becky Shale on 01202 558844 / bshale@rawlinsdavyreeves.com
