Estate Planning Considerations for Cohabitants

By Hayley Weston

Senior Associate

With the ever-increasing freedom to choose how we live our lives; we have seen a gradual increase in the number of cohabiting couples in the UK. The Office of National Statistics confirms this to be the fastest growing family type with an increase of approximately 25% over the past 10 years.

What many people do not realise however, is that cohabitees are not protected by the same law as married couples. There is no legal validity to the concept of ‘common law spouse.’ These couples often find that if the relationship breaks down or one partner dies, they are not entitled to the same legal protection afforded to married couples or civil partners. 

This blog highlights a couple of issues which such couples might wish to consider to avoid the risk of uncertainty in the future.

The importance of making a Will

It is vitally important that if cohabitees wish to make provision for each other that they ensure that they make a Will. Simply living with a partner does not give the survivor on the first death, an automatic entitlement to their deceased partner’s estate.

If no express provision is made for a cohabiting partner, their only recourse to seek reasonable financial provision, is to bring a claim against the deceased’s estate under the Inheritance (Provision for Family and Dependents) Act 1975. Such applications are not only time consuming and expensive but need to be made within a strict time frame, at time when the partner and wider family are grieving for the loss of a loved one.  

Declaration of trust

Property, including the family home is likely to be the main asset in the relationship. As a cohabitee unless the property is held in joint names you have no guaranteed rights to each’s property on separation or in the event of death.

Co-ownership of Home

If you or your partner have made unequal contributions to the purchase of a home, then it is extremely important to make an express declaration to set out how you intend the ownership to be shared as a result of the contributions.

If you do not make sure a declaration, the law as it currently stands provides that irrespective of the contributions made, you will be taken to hold shares in the property, in the same way in which you hold the legal title. So, for example if you purchase a property in your joint names, in the absence of a declaration setting out your respective shares, you will be deemed to own 50% each. This will be the case even if you one or other of you have contributed most or all the monies to the purchase.

If you want to have a chat or simply discuss you matter, please just pick up the phone and contact anyone in the private client team. Nockolds is here to help, as always.

For more information and to find out how we can help you, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our team will be in touch.