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The “Common Law Spouse” Myth

In the second of our series of myth-busting articles, Sarah Nash discusses another common misconception – the concept of “common law spouses”.

Sarah explained “We often hear people talk about “common law spouses” – however, there is no such thing in English Law.

In relation to Wills and Probate, the Law in practice regards unmarried couples as being single -irrespective of whether they may co-habit or even share children.

When an unmarried person dies without making a Will, the Intestacy Rules provide their Estate would pass to their children, or to their parents should they die leaving no children.

As discussed in our previous article, what the children would receive is subject to how jointly owned assets are held.

Depending on how the legal title of a property is held, a share in a jointly owned house could pass by the Intestacy Rules, as outlined above, and not automatically to the surviving joint owner who could be the person viewed as the deceased’s common law spouse.

In this event, the surviving partner may be forced to sell their home.”

Sarah continued “The importance of taking legal advice also becomes relevant when considering the tax implications facing unmarried couples.

Whilst Spousal Exemption operates to prevent Inheritance Tax from being payable upon transfers between married couples, there is no equivalent provision for unmarried couples.   Therefore, even if joint assets are held in such a way that they would pass automatically to the surviving joint owner then, depending on the value of the assets, the surviving joint owner may be liable to Inheritance Tax at a rate of 40%.”

Sarah concluded “Whilst the Law is struggling to keep up with this social change it is vital that unmarried couples take legal advice as to how their assets will pass on their death to ensure their partner is provided for.

Indeed, should your surviving partner not be sufficiently provided for, they may be left in the unpleasant position of being forced to make a claim against your Estate – with the Defendants of such a claim potentially being your children or parents.”

Our Wills and Probate team are experienced in dealing with all types of family situations and can draft Wills to avoid these pitfalls and ensure your partner is protected in the event of your death.   If you would like to speak to one of our team please telephone the Department’s Direct Dial telephone number 01283 743969.

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