The Myth of the Common-law Spouse
29th October 2012

Recent figures indicate that more and more of us are making the decision to co-habit with a partner prior to, or in a large number of cases, instead of, marriage. There are estimated to be some 2.8 million unmarried couples living together in the UK.

Unfortunately many of these will be under the common misconception that by living together over a long period of time they will become what is often termed “common-law” husband and wife which will convey on them the rights to property and inheritance tax that there “legally” married counterparts enjoy.

This is simply not so. For example, if an unmarried person who had been living with their partner for a number of years were to die without making a valid will, the surviving partner would not automatically be entitled to any assets that were not already in joint names.

This is because an unmarried partner is not a beneficiary under the Rules of Intestacy, the rules laid down by government that dictate who benefits and in what proportions from an intestate estate (one where no valid will has been left.) This could lead to disastrous consequences in situations where, for example, property is held just in one partner’s name.

The only way the surviving spouse could receive anything from the deceased’s estate would be to either rely on the generosity of the properly entitled beneficiaries (this is not always possible if the rightful beneficiaries are under 18) or by making a claim against the Estate under the provisions the Inheritance (Provision for Family and Dependents) Act 1975. As with any court action, such a claim can be expensive and there is no guarantee that the surviving partner would obtain a favourable result.

It is clear then that, until the law catches up with modern approaches to family life, the only way in which co-habiting couples can ensure that they and their partners are financially secure in the event of one of their deaths is to mke wills that adequately reflect their intentions to benefit each other.

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