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Am I protected if my cohabiting partner dies?

Cohabiting: Can I stay in the family home if my partner dies?

It’s a sad fact of life that without an appropriately drafted Will in place, unmarried, cohabiting partners have no automatic legal rights to property that is not jointly owned if one of them dies.

In short, this means that if your home is registered solely in your partner’s name and they die, the starting position is that you could be left facing eviction.

However, there are steps you can take to protect yourself – and actions to defend your position if necessary – and this is where Wards Solicitors’ specialist lawyers can help and advise.

Are there any common-law marriage laws that protect me?

Even though cohabitating couple families are the fastest-growing family type in the UK, there is no such thing as a common-law marriage.

If your partner dies without stating that you will inherit in their Will, or dies without making a Will, you could end up with nothing no matter how many years you have been together. In these circumstances it is important to seek early legal advice.

This extends not only to inheritance rights but general rights too.

Why is a Will so important for cohabiting couples?

The easiest way to provide for your partner is by making a legally valid Will.

This means that any property won’t automatically fall under intestacy rules. These govern how an estate is distributed when there is no Will, or no valid Will, and state that only married or civil partners or other close relatives – like children or siblings – can inherit if there isn’t a Will.

In what other ways can pre-death planning help protect a surviving cohabitee?

There are a number of important steps and considerations to take into account which need to be implemented while you are both still alive and still have mental capacity. These include:

  • Preparing a Cohabitation Agreement – this agreement outlines how you may own property and assets and what should happen if the relationship breaks down.
  • A Declaration of Trust. This can be a standalone agreement or incorporated into the Cohabitation Agreement and can set out in what percentage shares you may jointly own a property;
  • Considering how you may wish to jointly own a property. If you own the property jointly as joint tenants and one of you dies, the property passes automatically to the other outside of their estate and outside of the terms of any Will. If you own it as tenants in common, then the deceased’s share of the property passes according to the provisions of the Will or intestacy rules. This again underlines the importance of having a valid and up to date Will and ensuring you receive the right advice when you purchase a property jointly with someone else.

Can I claim under the Inheritance Act if I feel I’ve been unfairly treated?

Yes, it might be possible to issue a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if reasonable financial provision has not been made for you. The strength of the claim will be dependent on the circumstances.

In some cases, the court can order that financial provision is made for you.

Click here to read about a case of this kind although it’s worth knowing that litigation isn’t always necessary and there may be other options such as mediation open to you.

Get in touch

Wards Solicitors specialist lawyer, Georgia Wookey, can talk you through everything you need to know about preparing a Cohabitation Agreement.

She can also discuss your options with you if you think you might be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Email: Georgia.Wookey@wards.uk.com

Phone: 01454 204899

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