The importance of making Wills for unmarried couples

Trainee Wills solicitor, Issy Bainbridge, discusses the importance of making Wills for unmarried couples.

If a couple are not married and not in a civil partnership, it is very important that both parties put a Will in place if the wish is for the partner to inherit any assets upon the death of either partner.

The Intestacy Rules and exclusion of unmarried partners

Under current laws in England and Wales, a person who dies without making a legally valid Will would have their assets (including property and finances) distributed among close family in accordance with the Intestacy Rules, and will be regarded as an “intestate person”.

In the first instance, where the intestate person dies and was married or in a civil partnership, their assets will first be passed to their surviving spouse.

Where there are children and the assets are worth more than £270,000, the intestate person’s personal belongings and the first £270,000 will be inherited by the surviving spouse and the remaining assets which exceed £270,000 will be split with the children and the surviving spouse equally.

However, if there is no spouse (because they were not legally married or in a civil partnership, or because the spouse has already died) then under the rules of intestacy, the following will apply:

1. Initially, children (including legitimate, illegitimate and adopted but not step-children or foster children);
2. If there are no children, then the parents of the intestate person shall inherit the assets (however, problems may arise if the parents were not married when the intestate person was born and the father or parent other than the mother was not named on the intestate person’s birth certificate)
3. Siblings of whole blood (i.e., siblings that share the same parents) will be next to inherit if the parents have already passed. If a sibling has died before the intestate person but has children of their own (nieces and/or nephews of the intestate person), those children shall inherit in their parents’ place.

The list continues with the final position being that the Crown will inherit where there is no family to claim the intestate person’s assets.

However, there is no entitlement for unmarried/common law couples to inherit under the intestacy rules. This means that your unmarried partner may be left without any benefit, and they could lose out on their home and other assets they were expecting to inherit and therefore suffer both a financial and emotional loss. There is a prospect of such a person being able to bring a claim under the “Inheritance Act” if they were maintained by the deceased person, but the much simpler and less risky course of action is to ensure there is a Will in place.  

Jointly owned property and wills

Notwithstanding the intestacy rules (above) which exclude unmarried partners from inheriting in the absence of a formal and legal Will having been prepared, if the unmarried partner and the intestate person owned property jointly, there may be scope for the surviving partner to keep their home depending on whether the property was owned as ‘joint tenants’ or ‘tenants in common’.

Similarly, if you have a joint bank or building society account, the surviving account owner will inherit the whole of the money.

If you would like to make a Will to make sure your assets are distributed in accordance with your wishes upon your death rather than in accordance with the intestacy rules, Holmes & Hills can assist you.