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Unmarried but living together: why a will is essential

If someone dies without a will, then their estate will pass under the Intestacy Rules to beneficiaries chosen by operation of law, all of whom depend on a relationship of blood or marriage to the deceased. These statutory provisions do not include cohabitation, and accordingly a person cohabiting with the deceased, no matter how long for, has no automatic entitlement under law.

In simple terms therefore the Intestacy Rules do not cover the position where a couple live together without getting married, irrespective of whether they have children or not. A common example would be an unmarried couple who do have children. Upon the death of the first of them, the deceased’s estate would pass to their children (and indeed any other children of the deceased as well), and not the surviving partner. This, understandably, can cause significant hardship and unfairness in particular if the family home and significant savings are held in the name of the deceased. If however, any assets are jointly held (such as a joint bank account, or a property held as “joint tenants”) these would pass to the surviving partner by virtue of the way in which they were held. Each case is therefore dependent on your personal circumstances.

If this unfair scenario actually happened, the surviving partner could make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for provision out of the deceased’s estate, but, as with any form of litigation, success is not guaranteed (the Court having a discretion to make an award) and such proceedings would be lengthy, expensive and potentially upsetting.

It is for this reason that we at Kirkham Legal always advise cohabiting couples (often at the point they buy their first home together) that they should seriously consider the preparation of wills that make suitable provision for each other, and indeed for any other beneficiaries in the event of both dying.

Kathryn Doogue, Director at Kirkham Legal, comments:- “Wills are relatively inexpensive, especially when compared to the costs involved in making a claim against an estate, so really no-one has an excuse not to make a will, particularly couples who live together as it is vitally important that they make provision for each other whilst they can”.

If you wish to discuss any of the issues raised in this article, please feel free to contact Kirkham Legal on 0161 393 2299.

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