Back in 2016 we wrote on these Advice Centre pages about how the number of cohabitees nationally continued to rise – despite the precarious legal position of those who choose to live together without getting married.

Three years on and parliament is considering a bill to give cohabitees certain rights and make provision about the property of deceased persons who are survived by a cohabitant. But despite being introduced to parliament in 2017 the legislation has only reached the House of Lords committee stage. And with strong opposition to the bill from those who believe it undermines the institution of marriage further progress is not guaranteed.

As a result the reality is that as far as cohabitees are concerned little has changed in the past three years. Property rights, parental rights and taxation are just some of the areas where cohabitees will encounter difficulty if the relationship breaks down. Here we discuss the position of cohabitees when one partner dies.

What Happens When An Unmarried Partner Dies?

The legal risk posed by cohabitation when circumstances change was highlighted recently by the story of Gill Lavery. When her partner Paolo died unexpectedly she found herself facing a nightmare of bureaucratic wrangles caused largely by the fact that she and Paolo weren’t married. Gill admitted she had always believed she was “as good as married” to Paolo. Instead, when he died she discovered she had no rights at all. The difficulties she encountered included:

  • No automatic right to inherit her partner’s property
  • Difficulty dealing with banks and financial institutions as not legally recognised
  • No automatic entitlement to a share in pension or life insurance
  • Potential tax bill on anything inherited from her deceased partner

At the same time official figures published last month showed that cohabiting couples are the fastest-growing family type as people increasingly choose to live together before or without getting married. The percentage of cohabiting couple families has increased from 15.3% to 17.9%, or to 3.4 million families.

How Can Cohabitees Protect Themselves?

The story of Gill Lavery is tragic. But it’s clear that a significant amount of people are under the same misconception that has led to the difficulties she faced in the wake of her partner’s unexpected death.

Remember, Gill had lived long term with her partner, they were able to get a mortgage together and register their child’s birth as a couple. She believed the law offered her some protection. It didn’t. And until the bill going through parliament become s law it’s difficult to see how the rights of cohabitees will be extended. Gill Lavery now advises everyone to get married and that’s understandable given her experience. But marriage isn’t for everyone. If you are cohabiting there are steps you can take to protect your position in the event of one of your deaths. These include:

  • Making wills so that you will each inherit from each other. That’s not guaranteed under the law
  • Ensure that you hold property such as your home in the most legally appropriate way. A solicitor can advise you on this but it’s essential to clarify who owns property and in what proportion
  • Consider a declaration of trust to reflect your shares in property and what should happen to each share in the event of one party’s death
  • When one partner makes a contribution to a property out of their own funds, for example by contributing to capital repairs or paying for an extension, update the trust document to ensure added contributions are reflected in the ownership of the property
  • Consider a cohabitation agreement to regulate finances and property while you live together. Although designed primarily to assist with issues that arise on separation, cohabitation agreements can demonstrate what contributions are made to property and by whom in the event of one party’s death

How We Can Help

At Brookman we can assist with all of these matters. Above all bear in mind that a surviving cohabitee has no inheritance rights under the intestacy laws. While you may be able to apply for financial provision to the courts, success isn’t guaranteed and you could face significant legal bills. If you would like to discuss your situation with us directly please call us on + 44 (0) 20 7430 8470 or contact us online.

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