Importance of Wills for Co-Habiting Couples
If you are in a co-habiting relationship and have not made a will, you run the risk of leaving your partner in a potentially difficult situation in the event of your death.
Unmarried couples’ rights
Many people believe that if they have been living with a partner for a number of years they have become “common law husband and wife” and as a result have the same rights as married couples. Contrary to a commonly held belief, co-habiting couples do not have equal inheritance rights to married couples. In fact, a co-habiting partner has no automatic entitlement from their partner’s estate, at all. Fortunately, it is possible to prevent this situation arising by making a professionally drafted will. Therefore, it is essential that unmarried couples make wills.
Law for unmarried couples
In the case of a death without a will, the laws of intestacy will apply. The laws of intestacy in England and Wales do not provide an entitlement for the surviving co-habitee like they would a spouse or civil partner, children and other family members. In this situation, sometimes the only option for a co-habiting partner is to go to court to apply for provision from their partner’s estate.
Two draft bills, published by the Law Commission in December 2011, have proposed changes to spouses’ and co-habitees’ rights to inherit on intestacy. It remains to be seen to what extent the proposals will be adopted into law but, it seems likely that there will a drastic overhaul of the inheritance laws in the near future.
In the absence of a change in the law the onus is on the co-habiting couple to make wills that set out exactly how they would each wish their assets to be dealt with in the event of their death.
Children of co-habiting couples
The misinformation surrounding the idea of common law relationships also impacts on children of the relationship and who will acquire the responsibility for their care in the event of their parents’ deaths.
It is essential to understand that the legal position differs for minor children of unmarried parents as opposed to married parents.
Parents who are married when their child is born automatically acquire parental responsibility. Parental responsibility enables the parents to jointly or severally make decisions relating to the child’s educational or medical needs.
Where the parents of a child were unmarried at the time of the child’s birth only the mother will have automatically acquired parental responsibility. The father will acquire parental responsibility if he marries the child’s mother or if he is registered on the birth certificate, where the child was born after the 1 December 2003. Otherwise, the father may need to enter into a formal agreement with the child’s mother that is then registered with the court, or he will need to obtain a formal Parental Responsibility Order.
It is advisable in all cases, but particularly where there is only one parent with parental responsibility, to give consideration to who shall acquire parental responsibility and care for the child if you die while the child is still under 18.
If this issue is not addressed by appointing a guardian in your will then it may well be left for the court to make the decision meaning that guardians are appointed who you may not necessarily have chosen yourself. Making a will puts you in complete control of what happens in the event of your death and enables you to provide for your loved ones as you see fit.