Why is it important for unmarried partners to have Wills?

There is a common misconception that unmarried partners have the same rights to inherit from each other as married couples or couples in a civil partnership. Unmarried partners may co-own a property and set up their finances together and if they don’t have Wills in place, they may not realise the issues they could face after their partner has died.

Whilst certain jointly held assets may pass automatically to the surviving partner, there is generally no legal entitlement for unmarried partners to inherit from each other. Making a Will is the best way to ensure that an unmarried partner’s rights and interests are protected.

What happens if I am not married to my partner and I don’t have a Will?

Any assets a person owns jointly with their partner as joint tenants will automatically pass to the survivor of them.

However, the position is different if the assets are owned jointly as tenants in common. If there is no Will in place, any assets owned as tenants in common or in a person’s sole name will pass in accordance with the intestacy rules. Unmarried partners are not included under the intestacy rules and a partner would not inherit from their deceased partner’s estate. This could ultimately leave them in financial difficulties.

There is also a risk that the surviving partner may not be able to remain in their home. The surviving partner would also not have any right to administer their deceased partner’s estate which could create an issue if their child or children were to benefit under the intestacy rules and they were under the age of 18.

Why is it beneficial for unmarried partners to each make a Will?

Protecting your partner

By making a Will, a person can choose who inherits from them when they die. This means they can pass their assets to their unmarried partner and include who they want to inherit if their partner dies before them. This can provide security for both partners.

If an unmarried partner dies without a Will leaving their partner in financial difficulties as a result of not inheriting from them, it might become necessary for them to make to make a claim against their late partner’s estate for ‘reasonable financial provision’.

In the above circumstances, a surviving partner can make a claim against their deceased partner’s estate if they had been financially supported by them immediately before they died and they had both been living together as a married couple for at least two years before the date of death.

Potentially, making a claim could mean the surviving partner suing their deceased partner’s children or even their own children. Generally speaking, bringing a claim against a person’s estate is an expensive and long process with no guarantees.

Protecting your children

It is possible to appoint guardians to look after any child or children under the age of 18 in the event both parents die.

If a person dies without a Will and the children inherit, they will receive their inheritance at the age of 18. By making a Will, it is possible to change the age of inheritance to a more appropriate age (such as 21 or 25) rather than being stuck with the default age of 18. The Will would name people to look after the children’s inheritance until they reach the required age.

Saving Inheritance Tax

Married couples and those in civil partnerships benefit from spouse exemption from Inheritance Tax. This means that if the first spouse dies leaving everything to the surviving spouse, there is no Inheritance Tax to pay.

Further, if the first spouse to die has any unused tax free allowance, this can be transferred and added to the survivor’s own Inheritance Tax allowance meaning that when they die, they may have less or no Inheritance Tax to pay.

However, unmarried partners do not get the benefit of either spouse exemption or the transfer of any unused tax free allowance from the first person to die’s estate to the survivor’s estate. Therefore, it is important for unmarried couples to make Wills and consider their overall estate plan and how inheritance tax could impact them. In addition to seeking advice form a solicitor, it may also be beneficial to take advice from a financial advisor.

How we can help

Our specialist Solicitors Paul Clark and Natasha Yelland help unmarried couples to put Wills in place to achieve their goals.

If you do not have a Will in place or you have a Will and would like us to review it, then please email Paul or Natasha. Alternatively, please call us on 01260 769 639 to make an appointment.

We offer a free initial consultation at our office or in your own home. Alternatively, meetings can be carried out via telephone or online (e.g. via Teams).

This article does not constitute legal advice and we recommend you take advice from a solicitor before taking any action.