DTM Legal’s Family Department have discussed in their recent article, that the legal protection for unmarried couples has not kept pace with the growth of this type of household. Information published by the Office for National Statistics in November 2022 indicated that cohabiting unmarried couples were the largest growing type of family in the UK, with over 3.6 million couples cohabiting in England & Wales.
It is a common myth that unmarried couples who have cohabited for a period of time enjoy the protection of a ‘common law marriage’. However, no such common law provision exists, and unmarried couples do not enjoy the same legal rights as a married couple. Unfortunately, this disparity of legal protection means that unmarried couples could face significant pitfalls if one of them were to pass away had they not undertaken adequate estate planning measures.
Pitfall 1 – No Automatic Right to Inheritance
The first risk occurs if one of the partners has died intestate – i.e. the had not prepared a Will before they died. If a person has died intestate, the provisions of s46 of the Administration of Estates Act 1925 – colloquially known as the intestacy rules – confirms what happens to their assets held in their sole name.
Legally married spouses or civil partners have an automatic entitlement to inherit either the full value of the estate or a portion of the estate, depending on whether the deceased had children. However, unmarried partners have no such protection under the intestacy rules.
If the unmarried partner who died has children then their estate will pass entirely to those children. If they had no children, it would pass to their more remote blood relatives. This could be their parents, their siblings, nieces or nephews, their distant cousins of if there are no relatives the Crown then benefits (Bona Vacantia). In effect, the surviving unmarried partner would not receive anything, which may not be what the deceased partner intended.
The easiest way to mitigate this risk is to prepare a Will leaving some benefit to your surviving unmarried partner, as a valid Will would then direct who is to benefit from the estate.
Pitfall 2 – Inheritance Tax
During their lifetime, married couples enjoy some tax benefits which are not available to unmarried couples. The same is true for tax benefits after death.
If a deceased spouse leaves their assets to their surviving spouse or civil partner, there is no Inheritance Tax due on that gift by virtue of section 18 Inheritance Tax Act 1984. However, no such provision exists for unmarried partners.
If an unmarried partner left their estate to their surviving partner then if their estate is valued at over £325,000 there may be an Inheritance Tax charge. Depending on the value of the deceased partner’s estate this could result in a large tax bill as Inheritance Tax is typically charged at a rate of 40%.
This can cause quite significant hardship for a surviving partner, as any Inheritance Tax must be paid within 6 months of the death of the predeceasing partner. If the value of their estate is tied up in illiquid assets, such as property, it could be very difficult to find the liquid funds to pay the tax bill within time and avoid interest charges.
Unfortunately, there does not appear to be any sign of change to this position in the near future, as in November 2022 the Government rejected a call by the Women and Equalities Committee to extend the protections enjoyed by married couples to unmarried couples.
Pitfall 3 – Potentially difficult and costly to rectify inadequate planning
If the deceased partner has not adequately planned before their death to ensure that their surviving unmarried partner benefits from their estate in a tax efficient manner, rectifying this could be difficult or costly to the surviving partner, depending on how the deceased partner’s estate is due to pass.
If the estate has passed to more distant members of the predeceasing partner’s family, such as their parents, they may be unwilling to redirect the inheritance to the surviving partner, particularly if they were not on good terms.
If the estate has passed to any person who is a minor, then the permission of the Court would be required to redirect the inheritance to the surviving partner. The application to the Court would potentially be expensive and time consuming and there would be no guarantee of success if the Court felt that it was not in the minor beneficiaries’ best interests to surrender their inheritance in favour of the surviving partner.
If the surviving partner is unable to come to an agreement with the beneficiaries of the estate to redirect the inheritance to them, then their remaining option is to pursue a claim against their partner’s estate under the Inheritance (Provision for Family and Dependants) Act 1975. However, to make such a claim they would need to have either been financially maintained by the deceased or living with them in the same household as if they were married or civil partners for two years prior to death. This can make things complicated if the partners have not been living together in the same property (such as splitting time together and separately in different properties) or if they were financially independent from each other.
Additionally, bringing a claim against the estate could become significantly expensive, with the costs of running a claim to trial often being in the realm of tens of thousands of pounds.
Next Steps
If you and your partner are not married and you have any questions regarding your estate planning, or if you require assistance with any other matter, please do not hesitate to contact Helen Davies and the Family Law team call on 07840 849827 or 01244 568635 or email helen.davies@dtmlegal.com
Want to find out more? Visit our Family Law page for our full list of services and more information about DTM Legal. When considering wealth protection you may also want to consider Prenuptial and Postnuptial Agreements.
This article is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.
