A government report from November 2022 on cohabiting couples states that:

The total number of cohabiting couples has increased from around 1.5 million in 1996 to around 3.6 million in 2021, an increase of 144%. In 2021, 22% of couples who lived together were cohabiting rather than married or in a civil partnership. Trends differ between opposite-sex and same-sex cohabiting couples.

Unfortunately, couples who cohabit don’t enjoy the same legal protections afforded to married couples or those in a civil partnership. It’s difficult to think of a worse time to discover this than on the death of your partner, but sadly that is sometimes the case.

If you live with your partner in England or Wales and want to avoid an expensive and stressful legal dispute either on your death, or the death of your partner, here are some points to note (followed by some tips about what you can do)

Be aware of the ‘common law marriage’ myth

If one of you dies without having made a will, or with an out of date will eg providing for a previous partner, then the survivor may receive little or nothing from the estate.  Also, they may have no say about the funeral arrangements.  They may be lawfully evicted from their home if it is in the deceased’s sole name.

If the survivor had been living with the deceased for at least 2 years before their death, then they are entitled to bring a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.  But there is a strict deadline, and the court will only look to ensure ‘reasonable financial provision’ is made for the survivor, balancing that with other factors like the needs of any other beneficiaries. In a ‘step parent’ situation feelings can run high, and the deceased’s children may strongly oppose any application.

Check your mirrors!

Making a will is almost always a good idea; it provides clarity and a degree of certainty to loved ones.   Whether married or not, couples will often make what are called “mirror wills”.  They usually provide for A to leave everything to B and B to leave everything to A – hence the term ‘mirror’ will.  The couple will often decide that whichever of them is the survivor, they will divide their estate on their death between both sides of the family.  But if you have children from previous relationships and want to be sure that they are provided for either on your death or on the death of your partner, a mirror will may not be the answer as it cannot bind the survivor.

Ann and Bernard cohabit. Ann has an adult daughter from a previous relationship, Charlotte. Bernard has a son, likewise from a past relationship, David. The couple make mirror wills on the basis that the survivor of them leaves their estate to be divided equally between Charlotte and David.

Ann dies and leaves her estate to Bernard. Nothing prevents Bernard from making a new will after Ann has died. Perhaps he falls out with Charlotte, or he forgets about having made the will. Maybe he falls in love again; getting married will automatically revoke his will. Either way, it is entirely possible that Charlotte will not inherit anything on Bernard’s death. She will almost certainly have no legal right to challenge any new will he has made when he dies.

Be careful about lifetime gifts

Sometimes couples will make gifts or loans between themselves. As between married couples there is a presumption of advancement, which means that in law, cash and property transfers between them are assumed to be outright gifts.  But, if a couple is unmarried the opposite presumption arises – which is that the funds are a repayable loan.

After your partner has died, could there be an argument about gifts or transfers of property made during their lifetime?

What about gifts or loans made by your deceased partner to family members during their lifetime; you may know your partner’s intentions, eg about repayment of a loan, but is there any evidence?

How to avoid post death disputes

Families often rely on trust, but it is always better to plan for the worst while hoping for the best. Discuss financial matters as openly as you can with your loved one. See a (qualified and insured) solicitor to discuss tax planning, making Lasting Powers of Attorney and wills. Review your plans at least every 5 years or sooner, if there have been significant changes in your life. Before making substantial gifts of money or property to anyone, get legal advice on the possible outcomes. Keep good records. And then, hopefully you and your family will avoid having to ever come into contact with a contentious probate solicitor!

Sarah Young – Director & Solicitor