The recent Office for National Statistics report on cohabitation and marriage suggests that in 2015 28.4 million people were living as a couple in 2015. Those aged over 16 “cohabiting, never married or civil partnered” rose from 6.8% in 2002 to 9.5% in 2015.*
Whilst those aged 16 and over who are married make up the largest group in the report, the statistics make it clear that the number of those cohabiting has increased significantly in the past 13 years. It also identifies an important group that cohabit but who were previously married or civil partnered – making up 2.8% of the population over 16.
It is not necessarily fresh news that cohabitation is on the rise and that many people prefer to live with their partner rather than marry for any number of reasons. What is of concern is the number of those couples who may not realise the implications of the law should they die without leaving a will. There is strictly no such legal entity as a ‘common law’ wife or husband. If you die without a will and are married then your estate will be divided according to the Rules of Intestacy and the spouse will either receive the whole or a share of the estate, depending on its size.
Those who cohabit, even for a number of years, may be surprised to learn that should they die without a will, their partner will not benefit under the intestacy rules (and the rules are subject to change periodically). Children, parents and even siblings of the deceased may inherit but not their loved one. In some case, where there are perhaps divorced spouses, step children or acrimonious family divisions already in existence at the time of the death, this can make things very difficult for the partner left behind. Where the couple lived in a property in the sole name of the deceased, the survivor may find themselves being ‘evicted’ by the family and in a situation where they have to prove that assets in the home were jointly owned, or owned by the survivor, to avoid them being removed or sold.
Jointly owned assets such as bank accounts, chattels and property (provided it is held as Joint Tenants) will pass by survivorship to the joint holder. Cohabitees may therefore prefer to have everything in joint names to try to avoid any issues post death. For some, for tax or other personal reasons, this may not be a suitable option. Putting a will in place is therefore the safest way to ensure that testamentary wishes are clear after death. If the home is owned as Tenants in Common then each owner owns a specific share (often fifty-fifty) and their share passes according to their will or the intestacy rules if there is no will. This can result in a cohabitee potentially facing a sale of their home to settle the inheritance rights of others.
Cohabitees do have rights to claim against the estate of their partner in certain circumstances. Where they have been living together as husband or wife or civil partner for a period of not less than 2 years as at the date of death in the same household or where perhaps alternative living arrangements were in place but the survivor was maintained by the deceased then under the Inheritance (Provision for Family and Dependants) Act 1975 a claim could be made. Many of these claims can be dealt with quickly and cost effectively by settlement agreements between the parties.
While the future is always uncertain (and particularly at the moment with the Brexit process just starting) it is still likely that the number of cohabitees will continue to rise. Many more people will need to ensure that they have a will to try and avoid potential problems and claims post death.
If you would like to discuss any of the issues raised or would like more advice about challenging a will please contact Samantha Ewing by email firstname.lastname@example.org.
*Office for National Statistics report: Population estimates by marital status and living arrangements, England and Wales: 2002 to 2015. Released 13 July 2016 and available at: https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/populationestimatesbymaritalstatusandlivingarrangements/2002to2015