Unmarried Couples - The Importance of Making a Will

There are some really important things that unmarried couples should give serious thought to and make arrangements for:

The Impact of Intestacy

If an unmarried partner dies without a Will, their estate will be governed by the rigid laws of intestacy, which dictates who inherits property when a person dies without a Will – and they have very different effects depending on whether the deceased is married (or in a civil partnership) and when they are not.

If the deceased is married or in a civil partnership then the spouse/civil partner is entitled to the first £270,000 of the deceased’s property and 50% of the estate above that figure if the deceased had children. If there are no children, the spouse/civil partner inherits the entire estate.

If the deceased is not married (or in a Civil Partnership) then they are entitled to nothing under the rules of intestacy. There may potentially be a claim available to the surviving partner but this will be under Inheritance (Provision for Family and Dependents) Act 1975 and will involve an expensive, time consuming and uncertain application to the Court.

What happens to jointly property in the case of unmarried couples on the death of one of them?

This will depend on how they own the property.

If the unmarried couple is registered as joint tenants, they have equal rights to the entire property – there are no severed shares, and so if one partner died, the property becomes owned by the surviving partner. 

If an unmarried couple is registered as tenants in common, each of them has a distinct and severed share of the property which means that it does not (and will not under the laws of intestacy) pass to their life partner – the laws of intestacy will apply and this could potentially lead to the other partner being forced to sell what had been their joint home.

What happens to their children of partners who have assumed de facto responsibility for their partner’s children if the parent dies?

A person does not automatically get parental rights and responsibility in relation to their partner’s child by simply asserting or assuming them in practice. A person could have lived with their partner’s children for 10 years, assuming a parental role, and yet on the death of that partner, they would have no automatic right to continue to parent those children even if they had no other legal parent. An application would have to be made to court, and there is no guarantee that the court would choose the guardian that the deceased parent would have chosen themselves. However, it would be possible to express desired guardianship arrangements by Will to ensure that the existing family unit continued after the death of the sole legal parent.

What happened to the parental rights of the biological father in an unmarried relationship if the mother dies?

A mother will always, automatically have parental responsibility for her children and if the parents are married at the time of birth, both parents will automatically have parental responsibility for the child. However, the situation is very different for unmarried parents: the biological father will only acquire parental responsibility by being registered on the birth certificate, marrying the mother, adopting the child, becoming the legal guardian or otherwise officially being awarded parental responsibility by the court. This potentially leads to the situation that on the death of the mother, the father would have to apply to the court to continue to parent his own child. This underlines the importance of making a will to ensure continuity of care for children.

What happens financially if they break up?

Under English law, cohabiting couples generally have no financial responsibility to one another if they separate. There is no corresponding concept of spousal maintenance, even if one party was the sole breadwinner and the other had given up a career to support them or to raise children together, although child support may be payable and this is administered through the Child Maintenance Service.

Cohabiting couples also have fewer rights in relation to property and can’t generally claim an interest in relation to the property of the other partner unless they have made financial contributions to it in which case a trust may arise in their favour. For example, if the partner who is not the legal owner pays to reroof a property, a trust may exist over the property relative to their contribution even though they are not listed on the title deed.

What happens financially if the other partner dies?

This is one area where the law seriously disadvantages unmarried people compared to their legally spliced counterparts. Unmarried couples are not entitled to their partner’s state pension or bereavement allowance (regardless of what is stated in their Will).

Even the right to determine whether the deceased is to be buried or cremated may fall outside an unmarried partner’s purview – if there is no Will, the rules of intestacy will apply in the case of a dispute over what is to happen to the deceased’s body – for an unmarried person, this means that (in order) the deceased’s children, parents or siblings would get to make the decision, not the life partner. And this is the case regardless of how long the couple had cohabited. Similarly, if an unmarried person dies intestate, it will not be their partner who gets to administer their property – that will also fall according to the rules of intestacy. For a life-partner to be involved in the administration of the estate, the deceased will have to have made a Will naming the partner as executor.

6 scenarios showing the impact of dying without a Will in place

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