07.03.2018

More couples in recent years are choosing cohabitation rather than marriage.  Many believe they have the same rights as married couples, however, this not true as the law does not treat cohabitants the same way as a spouse. There is no such thing as a ‘common law marriage’ and under the intestacy rules, the survivor is not guaranteed a right in their partner’s estate.

 Below are some points to consider:

 Your Property and Making a Will

Rights in respect of jointly owned property, upon separation or death, depends on how the property is held.  There are two ways property can be owned by two or more people:

•  Beneficial Joint Tenants means that each joint owner owns the whole of the property and when one joint owner dies, their interest in the property effectively disappears therefore the surviving owner automatically owns the whole of the property.
• Whereas with Tenants in Common each joint owner owns a separate and distinct share of the property and when one owner dies, their share in the property will pass to the person named in their Will. If no Will exists, it will pass to the next of kin under the intestacy rules

If the property is held as Tenants in Common, it is advisable to enter into a Declaration of Trust to establish the divisible shares in relation to the property ownership and both owners should make a Will.

Under the intestacy rules the survivor is not guaranteed a right in their partner’s estate.  Just as importantly for such couples the survivor has no legal right to organise other matters such as funeral arrangements.  If you make a Will you can appoint an Executor to deal with your estate and ensure your wishes are carried out. 

 Lasting Power of Attorneys

When cohabitants are planning for the future it would be proactive to each have a Lasting Power of Attorney (LPA):  The two LPAs available are: 

• An LPA for Property and Finance will enable couples to deal with each other’s property or affairs (i.e as to your money and bills, bank and building society accounts, property and investments and any pension or benefits) if either are not in a position to so themselves. 
•  A LPA for Health and Welfare will give each authority to make decisions in respect of medical care; daily routine (i.e. washing, dressing, eating; living arrangements i.e. whether the Donor lives at home or in a residential/care home) when the Donor lacks mental capacity to make the decisions.

 For more information, contact Sarah Bourke on 01922 639 080.

 

About the Author, Sarah Bourke.

Sarah joined Walker Solicitors in August 2017.
Legal Assistant in our Wills Department.

T:   01922 639 080

@:  sb@walkersolicitors.com