When a couple cohabit it can often lead to complications and financial difficulties when one of them dies without a Will. Unlike spouses and civil partners, cohabitees do not have automatic rights to inherit.
Although it is possible for the survivor to make a claim against the estate if there is no Will, there is a timeframe of only six months to do so. There are also limits to what the courts can award, and there is no guarantee of receiving anything at all.
The greatest issue for most couples is what happens to their home, and this depends on what is in the title deeds to the property. Let’s take the hypothetical example of Kirsty and Archie; they cohabit and neither have made Wills.
- Scenario 1 - Archie owns the property entirely, and dies before Kirsty. This leaves her in a highly precarious position because she doesn’t own any share of the house. Archie can avoid this situation by leaving it to her in a Will.
- Scenario 2 - The title deeds show that the house is owned by Kirsty and Archie, and ‘the survivor of them’. This is known as a survivorship destination: if one of them dies, the survivor inherits the other’s share.
- Scenario 3 - Kirsty and Archie each own half of the property but there is no survivorship destination. If Kirsty dies, according to the rules of intestacy her share will go to her family. Archie would have to make a cohabitee’s claim, buy out her share, or persuade her family he should carry on living there. Again, it’s a precarious situation.
There are practical ways to avoid such situations. The first is to make a Will, protecting each person’s interest when the other dies. This action will also save on legal costs and avoid uncertainty around cohabitee’s claims.
The second is to recognise that disasters and disputes can also happen in life. It is possible to make a Cohabitation Agreement covering a number of different eventualities, including what would happen if you split up.
Conversations about Wills and Cohabitation Agreements are never going to be comfortable, but the discomfort could turn out to be far greater, and far more expensive, if you don’t have them in place.
If you would like advice on drafting a Will and making sure your partner receives everything you intend for them when you die, please get in touch with our Private Client team.
