Common law partner and next of kin rights
In probate law there's 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…
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Does the Common-Law Next-of-Kin exist?
In probate law there's 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. This is not correct.
An unmarried couple who have had children together may believe they have a 'common law spouse' or 'common law next of kin'. Again this is not correct. So 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 will or if you have a will but it is invalid. If you are 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 with the only option of making a costly and time- consuming inheritance claim against your estate.
You can avoid your estate following the Intestacy Rules by writing a will
The easiest way to provide for an unmarried partner is to make a legally valid will. To ensure your will is valid, we recommend you seek the assistance of a specialist.
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) 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. This problem can be avoided by writing a will!
Lasting Powers of Attorney (LPA): Consider making a LPA to give your chosen attorney(s) 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 Alzheimers/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. This is a legal agreement 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
- Consider entering into a cohabitation agreement
- If in doubt about any aspects - seek expert legal advice
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