Will I receive anything on the death of my common law spouse?

Contrary to popular belief there is no such term as “common law” spouse – and it is a myth that married couples and “common law” couples have the same rights.

Irrespective of the number of years you have lived together, a common law spouse has no automatic right to their partner’s estate. You will receive nothing at all automatically unless you are named as a beneficiary in your partner’s Will.

The changes to the Intestacy Rules to be introduced in October 2014 by the Inheritance and Trustees Powers Act will not improve your position.

Can I take action against the estate of my common law spouse?

You may have a right to take action under the Inheritance (Provision for Family and Dependants) Act 1975 if you have lived together for more than 2 years immediately prior to your partner’s death or if your partner was wholly or partly making financial provision for you.

Such an action has to commence within 6 months of a Grant of Representation being issued. Even if successful, the costs of such an action will probably come from the estate so your financial entitlement and security could therefore still be adversely affected.

What is the position of our children?

Under the Rules of Intestacy the estate does not recognise a “common law” spouse and you will therefore be side-stepped. However the Rules do recognise illegitimate children so (assuming that your partner does not still have a spouse whom he or she has not formally been divorced from) your intestate partner’s estate will pass to his/her children (whether by you or anyone else) in equal shares. You may well be placed in the very difficult position of having to negotiate a settlement with your children or, if they are under the age of 18, with the Court and those appointed to represent them. This could seriously damage your relationship with your children and again affect the amount left to be distributed.

Frequently, clients want to protect their children’s interest whilst still providing for their partner but feel matters are too complex and therefore avoid making a Will. This is misguided, there are a number of relatively straight forward options of ensuring that a partner has income or remains in the family home and at the same time protecting the children in the longer term.

If your children are not your partner’s children but the two of you want them to be treated in the same manner as if they were, you can only achieve this by making a Will.

Can I arrange a funeral?

No – not unless you have been appointed as the Executor and nor can you take part in the administration of the estate.

Inheritance Tax

As a common law spouse you will not have the benefit of spouse exemption – which allows married couples the right to leave all their estate to each other, irrespective of value, without paying any inheritance tax whatsoever.

If your common law spouse has made a Will leaving everything to you and their estate exceeds £325,000 you will usually have to suffer Inheritance Tax at the rate of 40% on everything above this figure.

We own our home in joint names as joint tenants

The home will automatically pass on the first death by survivorship, regardless of whether there is a Will or not, but there will still be Inheritance Tax consequences.

We own our home in joint names as tenants in common

The home will not automatically pass to you. Your partner’s share could pass to his/her beneficiaries under the Rules of Intestacy. This may mean you can only continue living there with the consent of such beneficiaries. If your partner had made a Will they could have ensured that you had the right to live in the property for the rest of your life (possibly imposing certain conditions such as you having to insure the property, pay all utility bills and keep it in good condition) with his/her share going to the children on your death or if you vacate the property. Alternatively the Will could provide for you to receive the share absolutely.

The house is in his/her name but I have paid the mortgage

That is irrelevant – you have no automatic rights to the house unless these are set out in a Will.

Once again you would have to take court action to have a chance of securing an interest.

My common law spouse had a very good pension – will this come to me?

Payments will probably be made by and at the discretion of the Trustees of the Pension Fund, who will probably not recognise a ‘common law’ spouse unless a Will has been made or a nomination form in your favour has been lodged with them.

For all the reasons and difficulties outlined above it is essential to plan ahead and protect each other by making a Will.

What is the next step?

Macks strongly recommend a face-to-face meeting in one of our offices or in your own home and at a time to suit you. This can be outside normal office hours.

One of our specialist solicitors will be able to explain things in greater detail and provide a bespoke Will written to reflect your circumstances and wishes.


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