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Over 65 and living with your partner? What can I do to protect my legal position?

by Ridley&Hall in Samantha Hirst posted March 13, 2018.

According to the Royal London there are more than 300,000 over-65s in England and Wales who are not married and live together.  The number of cohabiting couples aged between 65 and 69 years old trebled from 1.5 per cent to 4.5 per cent between 2002 and 2015.  There was also a rise in couples ages 70 and over from 0.7 per cent to 2.3 per cent.

Contrary to popular belief, there is no such thing as a common law husband or wife and a cohabitant has few legal rights.

When love is in the air it is understandable that you don’t want to think about the financial logistics of your relationship, but as you get older things can be more complicated – you may have children from a previous relationship and substantial lump sums of cash and assets in your sole name, like a house.

So what should you consider?

  • Make a will or update your existing one

What if, for example, you made a will after you divorced your husband which left your house that you owned in your sole name to your children.  You never updated this will and so your partner, who you’d been living with for 10 years, has no-where to live after you die.

Surviving cohabitants can make a claim against your estate under the Inheritance Act (Provision for Family and Dependants) Act 1975 if you have been living together for 2 years or more before your death.  It doesn’t matter if your will excludes them, or if you haven’t even made a will.  They still have the right to bring a claim if they feel that ‘reasonable financial provision’ hasn’t been made for them.

The Court will consider a number of factors such as; the financial resources and needs of the applicant and any other beneficiary of the estate; the obligations and responsibilities the deceased had to the applicant; the size and nature of the estate; any physical or mental disability of the applicant and any beneficiary; and any other matter the court considers relevant.

In addition, the Court must also bear in mind the age of the applicant, the length of the cohabitation, and the contribution of the deceased to the welfare of the family – so the longer the cohabitation the stronger the claim under the Inheritance Act.

When cohabitants make claims against the estate it can cause a lot of stress and turmoil between the parties.  To avoid this, seek legal advice and review your will every few years or when you have any significant changes in your life.

  • Draw up a Cohabitation Agreement and/or a Declaration of Trust

When you move into together as a couple, you build a life together no matter what your age.  This might include doing up your house into your dream home or paying off your existing mortgage.  In keeping with the same example above, say your partner moved into your house.  He sold his house and used some of the proceeds of sale to pay off your mortgage and build a conservatory at the back of your house .  It is tempting when you are in a loving relationship to have a ‘what’s mine is yours’ outlook, but this is not always ideal and it can be difficult to prove the intention of the parties when one of them dies – was it a gift?  Did he expect to get the money back?

If you died first and made a will leaving everything to your children, your partner may have a claim not only under the Inheritance Act but also a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) to say that he owns part of the property.  Even if you don’t legally own a property i.e. your name is not on the title deed, you can have an interest in it by financially contributing towards it in some way.  These cases can be very difficult to prove if no legal documents were drawn up, and the Court looks at the parties’ intentions.  This can boil down to evidence on a ‘who said what’ basis, and that’s difficult if one of the parties have died.    

If you seek legal advice and draw up a cohabitation agreement it can include how much each partner pays towards the rent, mortgage and utilities during the relationship and what happens if your relationship comes to an end.  A declaration of trust is a document that confirms the proportions in which two or more individuals own a property.  So if you are directly contributing a lump sum towards the mortgage for example, you may want to consider having one of these.

Talking about your finances is a taboo, but so many people are not aware of the legal implications of their actions.  Saying to yourself ‘everything will be fine’ and not seeking legal advice is likely to lead to complications in the future.

Samantha Hirst is a specialist in claims brought against estates under the Inheritance Act and TOLATA.  If you need to discuss anything raised above then please contact Samantha on 01484 538 421 who is able to offer a free 30 minute consultation.

Samantha Hirst

Samantha Hirst – Trainee Solicitor



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