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Cohabitees urged to make wills in light of Civil Partnerships ruling

Aug 7th, 2018

Hester Mills, Senior Associate Solicitor

Couples living together are being urged to make wills to protect themselves if one of them dies.

A recent Supreme Court ruling, which may pave the way for heterosexual as well as same-sex couples to enjoy civil partnerships, has brought into sharp focus how the law differs for cohabitees and those that are married or in a civil partnership.

Currently, heterosexual couples may only marry while same-sex couples can either marry or enter into a civil partnership.

In its decision, the Supreme Court said that the ban preventing opposite-sex couples from obtaining civil partnerships was incompatible with their human rights and amounted to discrimination.

If one member of a cohabiting couple dies – and they are not married or in a civil partnership – the deceased’s partner is not actually entitled to inherit anything from their deceased partner’s estate.

Hester Mills, private client solicitor at Langleys Solicitors, says: “Ideally, a cohabiting couple will have wills that outline who inherits on their death. However, two thirds of people in the UK do not have a will, in which case intestacy rules would govern who inherits the estate.

“Cohabitees cannot rely on being “a common law spouse” as this term is a myth and cohabitees have no entitlement under the intestacy rules when one of the couple dies.”

There are several other ramifications in the event cohabitees do not have wills.

Chelsea says: “The surviving partner may face financial hardship and it can also cause conflict with the deceased’s family members who may find themselves unexpectedly benefitting from the estate under the intestacy rules.

“For example, if the couple have children, the intestacy rules provide for the children to inherit the deceased’s assets, not the surviving partner. This is probably not what the deceased would have intended to happen.”

Chelsea adds: “The best way for cohabiting couples to protect themselves and each other is to make a will. They should also consider entering into a cohabitation agreement which would offer protection in the unfortunate event that their relationship breaks down.”

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Hester Mills

Senior Associate Solicitor

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