Living Together? Don't Rely on "Common Law Marriage" Myths | Curtis Parkinson

Living Together? Don’t Rely on “Common Law Marriage” Myths

8 October, 2024 4 minutes reading time


A new poll from the UK’s national will-writing campaign reveals a worrying misconception. Almost two-thirds (64%) of the estimated 3.4 million cohabiting couples in the UK wrongly believe their partner will automatically inherit their estate if they die without a Will. Younger couples are particularly prone to this misunderstanding, highlighting a critical need for greater awareness about unmarried partners’ legal rights (or lack thereof).

The Reality of Intestacy

The myth of “common law marriage” persists, leading many to believe that living together for a certain period grants them the same legal rights as married couples. This isn’t true.  In the UK, if you die without a Will, a situation known as ‘intestacy ‘. The intestacy rules govern the distribution of your estate. These rules prioritise spouses and civil partners. Next on the list are children and other relatives. Unmarried partners, regardless of the length of their relationship or whether they have children, have no automatic inheritance rights.

The Risks for Cohabiting Couples

This lack of legal protection can have severe consequences for cohabiting partners:

1. Loss of Your Home

 The stark reality is that if your deceased partner solely owned the property, other family members could force you to sell it to satisfy their claims or even evict you. Even if you jointly own a property, understanding how you hold it is crucial:

  • Beneficial Joint Tenants: This is the most common type of joint ownership, where each of you owns 100% of the property. If one partner dies, the surviving partner automatically inherits the whole property, regardless of what their will says. This is known as the “right of survivorship.” However, this automatic inheritance only applies to the property itself. Other assets, like savings and pensions, are not covered.
  • Beneficial Tenants in Common: Couples often use this type of ownership when they have unequal financial stakes in the property. If one partner dies, their share does not automatically pass to the survivor. Instead, their Will dictates the distribution, or the intestacy rules apply if they don’t have a Will. This could leave the surviving partner with a smaller share than expected or even force them to sell the property.

2. Financial Insecurity

The potential loss of your partner’s assets, including savings, investments, and pensions, could leave you in a precarious financial position.  Furthermore, unlike married couples and civil partners, cohabiting couples do not benefit from inheritance tax (IHT) exemptions. This means you could face a substantial inheritance tax bill on your partner’s estate, significantly reducing your inheritance.

3. Complications with Childcare

Decisions about your children’s future can become complex and legally challenging if you are not their legal guardian. Proper planning can avoid this situation. 

4. Secure Your Future

A Will sets out your wishes and ensures your partner is provided after your death. With a Will, you can:

  • Ensure Your Partner Inherits. Name them as your beneficiary to prevent them from being left with nothing.
  • Protect Your Home. Specify how to divide your property to ensure your partner can remain in the family home.
  • Appoint Guardians for Your Children. Gain peace of mind about their future care.
  • Minimise Inheritance Tax. Explore options to reduce your tax liability and maximise the inheritance for your loved ones. 

Our Advice

As this recent research shows, there’s a widespread and dangerous misconception about the rights of cohabiting couples. The current legal landscape in the UK places cohabiting couples at a significant disadvantage compared to married couples.  For cohabitees, especially those with children, making a Will is critical. Without one, your rights are limited, and navigating the complexities of property ownership, finances, and childcare can become a minefield if your partner dies.

Please don’t hesitate to contact us today for advice about any issues raised here. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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