Unmarried Couples – What happens to your property if your partner dies?

These are uncertain times. Covid 19 has given people both the impetus and, in many cases, the time to think about their affairs including from a financial perspective, this in turn has seen a spike in enquiries to both our Family and Wills teams.

One of the questions that keeps coming up surrounds what would happen to the family home, and other assets, on the death of an unmarried partner.

The Myth of the Common Law spouse

Firstly it should be made clear that the idea of a “common law husband/wife” is a legal misnomer – there is no such thing. Couples who are married have different and greater rights over their spouses’ property than those that are not, particularly when it comes to the death of that significant but unmarried “other”. Although increasingly out of fashion, remember that part of old wedding ceremonies where it is vowed “everything I have I give to you…..”. Well, in law, marriage does give ownership rights that simply do not exist for those in a non-married partnership. Indeed the starting point (and it is just that) for a divorcing couple trying to divvy up their financial assets is a 50:50 division. There is no such approach for unmarried partners who are separating, even if they have been together for decades and brought up children together.

What about our home? Wouldn’t my partner automatically inherit that?

The answer is that it depends how the property is owned legally. Where couples own the property as “Joint Tenants” (a decision that would have likely been made, even if unwittingly, at the time the property was purchased) the property automatically passes to the other owner by the principle of survivorship. It is worth noting that most property, when purchased together by a couple, is done this way. However, if one of the partners owns the property in their sole name, or jointly as “Tenants in Common” – where a particular share of the property is allocated to each purchaser” (again a decision usually made at the time of purchase) things are not so straight forward.

The surviving partner would NOT automatically be entitled to inherit the deceased partner’s share. Crucially it would depend on if they left a Will bequeathing their share of the property to their partner. Where there is no Will in place, the deceased partner’s share would then pass under the rules of intestacy which do not make provision for unmarried partners. The property would pass to other family members such as their parents, siblings or even remoter family.

What about our joint savings and investments?

The same rules apply. If money is held in joint accounts the funds would pass to the surviving account holder. That is why one of the first pieces of advice we give separating couples, both married and unmarried, is to consider severing joint accounts (and indeed severing joint tenancies if the home is owned jointly) straightaway. Otherwise, in the event of one party dying for example before the divorce is finalized, the assets transfer automatically to the soon to be “ex”, often not what the parties would want. But if the savings/investments/shares etc. are not jointly held, and not dealt with in a Will, the rules of intestacy would apply.

For completeness it should be noted that, in some limited cases, it may be possible for an unmarried partner to make a claim against the estate of a deceased but this can a difficult and expensive process, and completely avoidable by putting a Will in place.

And that really is the crucial advice for unmarried couples, and indeed married couples – especially where property is not jointly owned – make a Will. By doing this, couples can stipulate who is to receive what in the event of their death. Appropriate provisions can be put in place to protect the surviving partner should the worst happen. And if you decide to get married please note that Wills can be revoked by marriage unless properly accounted for in the Will – so let your solicitor know if you are considering marriage before they draft your Will. Equally, if your Will is out of date as your circumstances have changed since it was drawn up (for example you’ve got married, or divorced!) you should get it updated.

For more information, or for an appointment to discuss your requirements, speak to one of our expert solicitors in our Wills and Probate team. Alternatively, if you want more advice on Divorce/Separation/Co-Habitation agreements, please book an appointment with our Family law team.