A triangular inheritance

The case of Joy Williams, the common law widow who risks losing her home to her deceased partner's spouse, highlights that without a marriage certificate or civil partnership agreement, cohabitants do not have any rights over their partner's estate.

Ms Williams had lived with her partner Norman Martin for 18 years after he had split from his wife, Maureen. However, despite parting ways with his wife, Mr and Mrs Martin had never divorced and he had never updated his will to exclude her. This meant that on Mr Martin's death, his estate passed in accordance with his will, meaning his share of the property in which he lived with Ms Williams, and his other assets, passed to Mrs Martin.

On a divorce where an ex-spouse is mentioned
in a will, the will is read as if that individual had
died. However, a couple who decide to break up,
but do not formalise the break up with a divorce and a decree absolute, do not have that same protection.

If the couple have wills naming each other as beneficiaries and fail to update these, then the estranged spouse can still inherit. If there is no will and the intestacy rules apply, then the estranged spouse could inherit the entire estate, depending on whether or not there are also children.

Conversely, cohabiting partners who never enter into a marriage or civil partnership have no rights on intestacy. Fortunately in the case of Ms Williams, she owned a share of the property they lived in, so her share of the property was secure. If the property had been solely owned by Mr Martin, the whole property would have passed under his will to Mrs Martin.

Ms Williams' situation is sadly not uncommon. The options available to someone in her position would include reviewing whether a claim under the Inheritance (Provision for Family and Dependants) Act 1975 can be brought. Under the act, she could make an application as 'a person living with the deceased as husband, wife or civil partner for two years immediately before the death.'

In bringing a claim, Ms Williams would only be entitled to 'provision as it would be reasonable in all circumstances for the applicant to receive for his maintenance.' This is a lower standard than that applied to spouses who receive 'provision as it would be reasonable in all circumstances for the applicant to receive for maintenance.'

The stark difference between the entitlement given to spouses over those simply cohabiting reflects a need for an update in the law but, taking the situation as it is today, cohabitants need to protect themselves.

This means thinking carefully about how the property is to be held. There are two choices: either as tenants in common or joint tenants. If a property is held as tenants in common, each party is free to deal with their share of the property under their will, which is what happened in Mr Martin's case. If a property is held as joint tenants, on the death of one of the parties, the property can pass by the survivorship rule to the surviving joint tenant.

There are pros and cons to each, but an informed discussion should happen at the point the property is purchased. In addition, if one party simply moves into the other's property and assists with paying the mortgage, and/or contributes to making improvements to the property, again a legally binding agreement should be drawn up to reflect their input.

Cohabitation agreements are also, rightly, becoming increasingly popular. A will is, of course,
a vital ingredient in all of this planning. As above,
a cohabiting partner has no rights under the intestacy rules, and so having wills that reflect what you want them to receive ensures this happens without the surviving partner having to claim under the inheritance act.

While marriage may be considered by some as a dying institution, the current laws of England and Wales mean that, in the words of Beyoncé, there is still an argument 'to put a ring on it.'

Caroline Cook is a senior associate at Wedlake Bell

She writes the regular comment on inheritance in Private Client Adviser