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Does The Common-Law Next-of-Kin Exist?

By Principal Lawyer, Wills, Tax, Trusts and Probate

In probate law there are no legally defined terms for common law spouse or next-of-kin, yet the belief is that an unmarried cohabiting partner is the next-of-kin and entitled to receive your estate on your death if you haven’t written a will. That incorrect belief is even stronger when an unmarried couple have had children together. It’s very important if you are living with an unmarried partner to consider the legal position of your estate on your death.

The Intestacy Rules

The Intestacy Rules are a rigid set of legal rules which dictate who inherits your estate if you die without a valid will. If you’re unmarried your partner might receive no financial provision and everything you own could pass to your children, parents, brothers/sisters or distant relatives leaving your unmarried partner forced into making a costly and time consuming inheritance claim against your estate. 

You can avoid your estate following the Intestacy Rules by writing a will and ensuring that you own any property together as joint owners (where relevant to your own personal circumstances – remember one bobbie’s-helmet doesn’t fit all). 

Wills

There is no easier way to provide for an unmarried partner than making a legally valid will. You can make provision for your partner and it will take effect overwriting the Intestacy Rules. However you must ensure that your will is valid because the legal rules are very strictly applied by the court – so we would not recommend that you write your own will. 

Joint-Owners or Owners-in-Common?

If you own property with your unmarried partner as joint-owners (also called joint-tenants) then on your death it will pass automatically to them. The Intestacy Rules will not apply and the joint ownership takes priority over anything written in your will.

If you own the property as tenants-in-common (or in your sole name for that matter) then your share of it passes either according to the provisions written in your will or, if you haven’t got a will, under the Intestacy Rules. Your partner could find that they now own their home with a new co-owner when they were expecting to own it outright. Would you want that to happen to you if the tables were turned and you outlived your partner? This problem can be avoided by writing a will! 

Other Issues

Lasting Powers of Attorney (LPA):

Consider making LPAs to give one another legal access to and authority over your finances and personal care decisions in case you become unable to take financial or health decisions for yourself - whether through illness (e.g. stroke or Alzheimer’s/dementia) or from an accident at home or at work. 

Declaration of Trust:

If you have more than one property consider writing a Declaration of Trust: a legal agreement that is used to specify how a property is held between unmarried owners or used to transfer ownership from one name into your joint names. 

Cohabitation Agreement:

Consider legal advice when writing a cohabitation agreement which can detail how property is dealt with both during your relationship and upon separation. 

The best way to ensure that you make provision for an unmarried partner is to: 

  • Consider the above points carefully and have frank discussions with your partner
  • Have your will professionally written by a specialist advisor
  • Consider entering into a cohabitation agreement
  • Seek expert legal advice 

To write your will please call Slater and Gordon on freephone 0808 175 7805 and we’ll be happy to help. Alternatively you can use our free on-line will writing service via your federation website, available exclusively for federation members.

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