Despite the rise of cohabiting couples in the UK, there is still confusion surrounding an unmarried partner’s rights after their other half has died.
Many cohabiting couples still believe that their rights are protected by ‘common law’, however, in the UK, this does not exist. This means that when there are cohabitation disputes or when one of the cohabiting partners dies, the other can be left shocked and surprised by their lack of rights.
Find out all about the common misconceptions surrounding cohabitation and the rights of unmarried couples if one dies.
Will I automatically inherit our family home?
If both partners own a property as ‘Beneficial Joint Tenants’ when one of them dies, the other partner will automatically be entitled to the house due to survivorship.
However, if that tenancy has been severed, the property is held as ‘Tenants in Common’ or if the property is in the name of the deceased cohabiting partner, the surviving partner would not be automatically entitled to the property, even if the cohabiting couple has lived together for 2 years, 10 years or 40 years.
Their entitlement to the property under these circumstances would depend on whether or not the deceased left the house to them in their Will. If the deceased did not have a will then intestacy rules would apply and therefore because the parties are not married there would be no entitlement to an interest under those rules which would mean the property would pass depend on the surviving family members to the parents, siblings or other members of the deceased family. The surviving partner could then make a claim for an interest in the property either against the estate on the basis that they have an interest in it (this depends on numerous factors which we have discussed in previous blogs here). Alternatively the surviving partner could make a claim for provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975.
Both of the above can be complex and lengthy disputes. It, therefore, goes without saying that it is important that cohabitees consider ownership of the Property and make wills and also revoke those wills if circumstances change.
What will happen to my partner’s pension?
Further financial worries could be felt by the surviving partner in a cohabiting relationship where one of the partners dies.
If the deceased partner received a state pension, the surviving partner would not be entitled to receive it, nor would they have access to a bereavement allowance. This is regardless of what the deceased partner leaves in their Will, as most private pensions schemes in the UK actually exclude cohabiting partners.
Will I be able to access our savings and investments?
Where a cohabiting couple has joint savings and investments, they will be automatically passed on to a partner or account holder, when their partner dies.
However, should the deceased have savings and investments in individual accounts, the cohabiting partner would have no right to claim. These would have to be specified within the Will and, if there is no Will, it follows the same intestacy rules as the ownership of a property, with them being shared to the parents, siblings or family members of the deceased.
What tax inheritance reliefs will I receive?
In the UK, every individual has an inheritance tax threshold or nil-rate band of £325,000.
When the first spouse dies in a civil partnership or marriage, the estate is transferred to the surviving spouse – their nil-rate band is not used and the inheritance remains tax-free. When the surviving partner experiences a second death of someone close to them, the nil-rate band which wasn’t used for the first death is combined with the nil-rate band of this death and, therefore, increases the reliefs available up to £650,000. This means that no inheritance tax is usually needed to be paid as a result of the combined estate.
When a cohabiting partner dies, the inheritance tax threshold is applied to the value of the property and estate. When the value is over the threshold of £325,000, the excess is then taxed at a rate of 40%. Even if the estate of the deceased is left to the surviving partner in their Will, this same rule applies, meaning the inheritance tax will be paid before it is passed on to the surviving cohabiting partner.
Can I claim my partner’s estate?
If the surviving partner was not included in the Will or there was no Will, the surviving cohabiting partner can make a claim against their deceased partner’s estate.
They are only able to do this if they can prove that they were partly or wholly maintained by the deceased partner, or if they were living as if they were married or in a civil partnership in the same household. A claim can be made to the courts to make a reasonable provision, however, these can be extremely complicated cases..
One such example of the complexity and drawn out process involved Siobhan McLaughlin from Northern Ireland, who was refused a widowed parent’s allowance for her four children, when her cohabiting partner of 23 years died in January 2014.
She won the case based on unlawful discrimination, however, this decision was overturned by the Court of Appeal. In August 2018, she went to the Supreme Court and in a landmark case, the court ruled in her favour, providing an allowance due to the responsibilities of the deceased partner and the surviving partner towards their children.
How to avoid such situations
For cohabiting couples, you should try to ensure that the legal ownership of the Property is in order and how the parties want it to be held.
Any agreements not reflected in the deeds should be documented between the parties as to the beneficial ownership (either by way of a cohabitation agreement or a declaration of trust) which can then be used as evidence to make claims against the estate.
You should also give consideration to drawing up a will to ensure that adequate provision is made for the surviving partner and then for the remainder of your estate upon death.
Alternatively, you can speak to one of our cohabitation solicitors for information on how to handle the situation.
If you need more information on common-law partner rights after death in the UK or to settle cohabitation disputes, contact our team of expert cohabitation solicitors in Warrington and Manchester today.