Unmarried and unprotected: A Will is the only option

Wednesday 4 January 2012

Writing a Will is one of the most important arrangements a person can make during their lifetime. By writing a Will, you ensure that upon death your estate is divided exactly in accordance with your wishes. You have complete control over who does (and who does not!) receive a share of your assets when you die. Given that this division of assets is so important, it is hard to believe that so many people fail to make Wills.

Recent figures show that around 30 million people in Britain have not made a Will. Could it be that people are simply unaware of the importance of making a Will? Or perhaps ignorant of the law regarding what happens if they do not? It is a common misconception that even without a Will, upon death a person’s estate will be divided amongst the intended recipients automatically. This is simply not the case. When a person dies without having made a Will they are said to have died ‘intestate’ and the distribution of their estate is governed by a set of rules set out by the law known as the ‘intestacy rules’.

Under the intestacy rules, if you are married or in a civil partnership and do not have children, the first £450,000 of the deceased’s estate will automatically pass to the surviving spouse. Anything over the £450,000 threshold (the residue) will then be divided equally into two parts. One part of the residue will pass to the surviving spouse and the other part will pass to the parents of the deceased. If there are no surviving parents, then any siblings of the deceased will inherit this share.

Alternatively, if you are married or in a civil partnership and do have children, the first £250,000 of the deceased’s estate will automatically pass to the surviving spouse. The residue will again be split into two parts, with half being held on trust for the surviving spouse and the remaining part being split equally between the deceased’s children.

Although these rules are not ideal and are in no way appropriate for all family set-ups, at least it can be said that the spouse is provided for in both situations. The real issue arises when a couple are not married.

It is unnerving to think that in today’s society, where cohabitation is so common, that there is no provision for unmarried couples in the intestacy rules whatsoever. The current rules state that any children of the deceased would inherit the estate absolutely. If the unmarried couple did not have children, the estate would pass in full to the deceased’s parents and if no parents will pass to any surviving siblings (if no siblings, grandparents and if none to various family members after that).

The Law Commission published a report in December which recommends a reform of this area of the law so that certain unmarried couples have the right to inherit upon each other’s death under the intestacy rules. It proposes that couples who have been living together for five years or more have a right to inherit under the intestacy rules. Where a couple have a child together, it proposes that a claim could be made after two years of living together.

Although these proposals are a step in the right direction in encouraging fairness to unmarried couples, these proposals are in the very early stages of the law making procedure and these changes may never be put into place. Even if these proposals do become law and the intestacy rules are widened to include unmarried couples, how would a couple prove that they satisfy the criteria? What evidence would there be to prove the date a couple started cohabiting?

This whole issue can be avoided if a Will is made that directs exactly what assets are to be left to the partner upon death. The fact is that in cases of both married and unmarried people, the intestacy rules are intended to be a ‘last resort’ in dividing up an estate after death. The ‘one size fits all’ nature of the intestacy rules can never reflect a person’s wishes entirely and in some circumstances can leave no provision for loved ones whatsoever. The rules are hugely outdated having been written in 1925 and cannot adequately reflect modern day family set-ups almost 90 years since their creation.

Every family set-up is unique. It is so important that everyone has a Will to reflect their own circumstances. The only way to avoid these problems and to give you complete control as to who your estate is passed to upon your death is by making a Will.

Making a Will is a simple and straightforward process. If you would like to make a Will, please contact our Wills & Probate team on 0113 207 0000.