There have been several changes regarding marriage law since 2004, with the most recent being the introduction of opposite-sex civil partnerships in December 2019.
These changes have been important in providing clarity over legal rights and financial security when one member of the couple dies.
Meanwhile, despite ongoing campaigns, couples who choose not to formalise their relationship can face a great deal of uncertainty when one of them dies if the survivor is not provided for in a Will.
‘Cohabiting is no longer seen as taboo, and marriage or a civil partnership simply do not appeal to many couples,’ says Annaliese Barber a Solicitor in the Wills and Probate team with Richard Reed Solicitors in Sunderland. ‘However, it is important for cohabiting couples to understand that they do not share the same legal rights and financial security as those who have formed a legally recognised union.’
Annaliese outlines some of the issues which you need to consider in regard to your Will and your marital status.
Different rights under intestacy rules
When a person who is married or in a civil partnership dies without a valid Will, they are known as an ’intestate’ and the distribution of their assets will follow the rules determined by intestacy law.
A spouse or civil partner will automatically be entitled to the estate, although it should be noted that the full extent of entitlement depends upon whether the couple have had children together, as well as the way in which certain assets are held. A spouse or civil partner can at least rest assured that they will be provided for to some extent, albeit not necessarily to the extent they thought they would be.
Cohabitees, however, do not receive the same automatic entitlement if there is no Will or a valid Will, regardless of how long the couple have lived together. As such, a cohabitee may no longer be able to remain in the home they shared with their partner and it might be necessary for them to make a time-consuming and expensive claim against the estate.
Implications of a change in marital status on making a Will
When making a Will, there are a number of considerations which depend upon marital status and any planned changes to this status:
- If you are a cohabiting couple, it is unlikely that intestacy provisions would reflect your wishes, therefore you need to think carefully about making your Wills.
- If you are planning to get married or enter a civil partnership, the law dictates that any marriage or civil partnership formed after a Will is executed has the effect of revoking the Will in its entirety. As such, if you currently cohabit and intend to marry or become civil partners at a later date, you must ensure that your Wills set out this intention in a legally binding way.
- If you are in the process of getting a divorce or dissolution, a formal separation can take time. If you do not want your spouse or civil partner to inherit if you die before the proceedings have been completed, you should consider updating your Will before receiving your final order.
- Once your divorce or dissolution has been finalised, any reference to your ex-spouse or ex-civil partner within your Will is to be read as though that person died on the date your divorce or dissolution was finalised. It is important to ensure that your Will is updated following divorce or dissolution to make sure that it continues to reflect your wishes.
- Cutting out a dependant ex-spouse or ex-civil partner may not be appropriate in all circumstances, for example if you have been ordered to continue making regular payments to them. This makes updating your Will post-divorce or post-dissolution even more vital.
- For a second or third marriage, you should consider and seek advice on any claim a former spouse or civil partner may have over your estate to ensure that your current partner is protected, especially if you have children from earlier relationships.
- A deathbed union or a deathbed Will should never be a first choice but can be a useful option for couples who have not planned ahead. Even so, careful consideration must be given to ensuring that wishes are not made in a panic, that you are not subject to undue influence, and you should seek expert advice to help guide you through the process.
Forgetting to update your Will in light of a change of circumstances could lead to a claim being made against your estate. Your estate could also become subject to a claim, for example from a disappointed cohabitee, if you have failed to make a Will and simply left the distribution down to the rules of intestacy.
How we can help
For all couples, it is vital that you understand your legal rights and that you ensure your wishes are properly protected and upheld. Our solicitors can explain how your estate will be dealt with in view of your circumstances and help you plan to achieve your wishes.