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As an Unmarried Couple, what are our inheritance rights?

The myth of the common law spouse in inheritance disputes

Recent studies have shown that 46% of the UK population believe that unmarried couples living together are ‘common law spouses’- tantamount to a marriage or civil partnership. Many people would be surprised to learn that this is a myth and being a common law spouse does not confer much in the way of legal protection.

When it comes to inheritance, it’s very  important to know what your legal rights are- and to understand how you can avoid disputes over wills and assets further down the line.

Senior Solicitor, Daniel McCracken, highlights a few areas of importance for unmarried couples within the context of inheritance. 

Do I have the automatic right to benefit from my partner’s estate?

Unfortunately, the short answer is no.
A common law spouse or unmarried couple, does not have an automatic right to inherit from their partner’s estate.

In Northern Ireland, when there is no legal spouse or civil partner the deceased’s children will take all of the estate. Generally only children related to the deceased by blood or through formal adoption will benefit.

When there is no spouse or children the deceased’s assets will pass to the deceased’s parents or siblings or potentially more distant relatives. 

There is no default provision for common law spouses, regardless of the duration or interdependency of the relationship. 

Similarly there is nothing in the law stopping a person from making a Will leaving assets to people other than their partner – even if that Will predates the relationship.

NI Direct also offer important information on Making a will | nidirect covering;

How can my partner and I benefit from one another’s estates?

The most straightforward way to ensure that you and your partner’s true intentions are carried out is to make a Will, taking the nature of your relationship into account. 

A valid Will takes precedence so long as a person is mentally capable and not subject to the undue influence of someone else then they can leave whatever they have to whoever they want to benefit under their Will. 

Spouses/civil partners also benefit from tax exemptions which can be applied to potential charges for Inheritance Tax. Common law spouses do not benefit from the same exemptions.

Do you have any advice on how to manage our assets?

A key consideration for cohabiting partners is to ensure that any jointly owned assets (including property) are held on a joint tenancy and that this reflects the true intention of how the property is to be owned.

In most circumstances with jointly held assets the Will of the person who has passed away do not dictate who benefits from that asset. 

Where an asset is held jointly in this way there is an automatic right for the survivor to benefit from the asset when one of the joint owners passes away. 

For example, if you and your partner own your home as joint tenants then the default position on death is that the survivor will inherit the home and the deceased partner’s Will will have no say over what happens to the home.

What if the assets are not joint and my partner has not provided for me?

Whilst there is no automatic right to an entitlement to the estate of a cohabiting partner, there are possible claims that a surviving ‘common law spouse’ can make. Below are some examples of potential claims.

Common intention constructive trust

A common issue for partners can be if the home was purchased in the sole name of one of the partners with the intention that it is treated as a joint home. Alternatively, a home purchased jointly might not accurately reflect the shares the owners intended to have in the property. This can give rise to a common intention constructive trust where the legal ownership (i.e., the person named on the deeds) is different or is in different proportions to the beneficial ownership (i.e., who should benefit from the house and in what shares). 

Courts can make declarations of the true beneficial ownership of property where one of the couple can show that there was a common intention (i.e. both parties sought to own the property differently than how ownership is recorded on the deeds) and the person bringing the claim can show they have suffered detriment. 

Inheritance (Provision for Family and Dependents) Northern Ireland Order 1979

The above legislation provides the Courts with substantial powers to make financial provision for certain classes of people related to the deceased. 

Two of these categories are:-

  • The person bringing the claim was cohabiting with the person who has died as if they were spouses or as if they were civil partners for the continuous period of 2 years leading up to the death; or
  • The person bringing the claim was wholly or partly being maintained by the deceased immediately before the death.

If you can prove that these apply to you as a surviving common law spouse then you meet the criteria to bring a claim where the estate distribution does not make reasonable financial provision for you. 

In these circumstances you may be entitled to reasonable financial provision from the estate to provide for your maintenance. 

More information on Inheritance Claims

There are a number of factors which the Court must take into account when deciding whether to exercise any power to provide for someone who is not entitled. You can read more about this type of claim here;

Inheritance Claims feature

Takeaways & Best advice

The key point to take away is that common law spouses are generally not recognised under the law. 

The default position is that there is no automatic right to inherit from a partner and the potential claims available to a surviving partner are limited. 

Whilst there are potential claims to bring as a common law spouse where no provision has been made, these claims can be complicated and can take time to be resolved.

Where a marriage or civil partnership is not being entered into but you are financially interdependent, it is vital that you plan accordingly and ensure that both you and your partner are aware of the pitfalls so you can take action to avoid them.

Get in Touch

If you would like to chat to Senior Solicitor Daniel McCracken about planning ahead to protect your assets or a Wills dispute, Daniel and our specialist team of solicitors will guide you.

Call us on Let’s get Started form.

Get in touch

To find out more about how we can help you with your query, please contact us.