Future Planning: Why Cohabitees Should Prioritise Wills
Posted on 11th November 2024
In today’s world, an increasing number of couples choose to live together without entering into a Civil Partnership or Marriage. The Office for National Statistics reports that cohabiting couples are the fastest-growing type of family, with nearly 3.6 million cohabiting families recorded in 2022. A cohabiting family, also commonly referred to as a ‘blended’ family, can have different legal considerations - and implications - than a family who are married or in a civil partnership. Unlike ‘traditional’ couples, cohabitees do not have the same automatic inheritance rights under law, if one cohabitee dies without making a valid Will.
While cohabitation offers freedom, flexibility and does not come with the paperwork of ‘tying the knot’, it also presents unique legal challenges, especially concerning the rights of each partner in death. For cohabiting couples, preparing legal documents, such as Wills and Lasting Powers of Attorney, is a crucial step in protecting and planning for their shared lives and interests. Here’s why Wills and Lasting Powers of Attorney are essential and how they can protect cohabiting families.
The Alarming Statistics: How Many Cohabitees Have Wills?
Research shows that most cohabiting couples are under prepared when it comes to estate planning. According to recent surveys, less than 30% of cohabiting couples in the UK have made Wills, which means that a staggering 70% plus of cohabitees do not have a Will. In these cases, the cohabitees’ estates will pass under the Rules of Intestacy, which do not recognise cohabitees as being entitled to inherit from their partner’s estate.
Not having a Will can lead to financial and emotional implications for surviving partners, who may be left without any legal right to inherit the family home, their partner’s possessions, or even savings.
The Rise of Cohabiting Couples
Cohabitation has become one of the fastest-growing family types in the UK over the last two decades. According to the Office for National Statistics, cohabiting couples account for 18% of all family types in England and Wales, compared to 8% in 2000. This trend continues to grow, especially among younger generations:
40% of couples aged 16-29 are cohabiting without marriage, marking a significant shift in how younger people approach relationships and family structures.
The number of cohabiting couples with dependent children has also seen a sharp increase, doubling between 2008 and 2023, highlighting that cohabiting couples are increasingly choosing to raise families without the formalities of marriage or civil partnerships.
Legal Protections for Cohabiting Couples
Unlike married couples, cohabiting partners in England and Wales do not automatically inherit their partner’s estate if one partner dies without a Will. This situation, often referred to as the “common law marriage myth,” leaves many cohabiting partners at risk. Research by the Law Commission suggests that a significant number of cohabiting couples wrongly assume they will have the same inheritance rights as married couples.
46% of people in the UK mistakenly believe that cohabiting couples have the same inheritance rights as married couples.
According to a study by the charity Will Aid, 62% of cohabiting adults do not have a Will, leaving their partners without legal protection in the event of their death.
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Why Wills are Important for Cohabitees
Protecting Each Partner’s Financial Security and Assets
Contrary to common misconceptions, which our Wills and Lasting Power of Attorney Solicitors in Preston often hear referred to as a “common law marriage”, cohabiting couples do not have the same rights as married couples or civil partners when it comes to inheritance. This means that if one partner passes away without a Will, the surviving partner has no automatic right to inherit, regardless of the length of the relationship or shared assets. Instead, the rules of intestacy determine who inherits the deceased’s assets. The Intestacy rules typically favour blood relatives, for those who are not married, starting with children (including children who are legally adopted into the family), then moving onto other relatives if the deceased had no children, such as parents, or siblings, or aunts and uncles. You can read the full intestacy rules, here.
By drafting a Will, cohabiting partners can ensure that:
Their assets and possessions are distributed according to their wishes, allowing them to leave property, savings, or sentimental items to each other.
Property is protected for the surviving partner, especially if the property was owned by the deceased, and not in joint names.
Sufficient provision is made for each other, such as a right to live in the family home, or a cash lump sum to assist with future living costs.
Without a Will, the surviving cohabitee could face financial hardship and, in some cases, the uncertainty of no longer having the financial security that they once shared with their partner, potentially losing their home or income.
Preventing Disputes and Unnecessary Legal Costs
If a cohabitee does not receive inheritance under the intestacy rules, if their partner has not made a valid Will, if they satisfy the criteria, they may have standing to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which allows a person who was living with the deceased cohabitee to make a claim against their estate, if they cohabited for two years prior to death, as if they were a spouse or civil partner.
Whilst there is a route into making a claim against an estate, there is no guarantee that any claim would be successful. Indeed, if a claim was successful, the ultimate decision of how to distribute the estate could lie with the Court, meaning they will consider the circumstances – including financial, relationships, and other factors – of all relevant parties, such as those people who would have otherwise inherited from the estate under the intestacy rules. This could mean that the cohabitee does not end up receiving everything the deceased partner would have wanted them to receive, but what the Court believes to be fair, taking into account all the relevant factors.
The costs of making a claim under the Inheritance Act can be high, typically costing thousands upon thousands of pounds, and when comparing this to the cost of making a Will (from £185 plus VAT for a single Will and from £345 plus VAT for mirror Wills for our Wills Solicitors in Preston’s charges) the decision to make a Will is an easy one. It can prevent unnecessary legal fees, as well as the stress and time involved with making an Inheritance Act claim for your loved ones.
Why Are So Many Cohabiting Couples Unprepared?
The lack of Wills among cohabiting couples is likely due to a mix of misconceptions, avoidance, and a lack of legal awareness. Some common reasons our team hear, include:
The “Common law marriage” myth:
Many believe in the “common law marriage” myth, assuming that living together for a long time grants similar legal protections as marriage or civil partnerships. However, no such protections exist under current law.
Age:
historically, cohabiting couples are younger and may feel less inclined to think about estate planning. A common explanation for not having a Will that our Wills Solicitors hear is “I’m too young to make a Will”. Age should not be defining factor in whether or not a couple, or indeed, an individual, makes a Will. Any cohabitees should consider making a Will, to ensure they protect one another and have the necessary provisions in place after death.
An unwillingness to discuss death:
Discussing death and finances can feel uncomfortable, and our Preston Solicitors are told frequently by clients that they have had to prepare themselves for the difficult topics well in advance of even arranging their first appointment.
Alarming statistics suggest that 74% of people aged 30-39 without a Will feel that creating one is unnecessary, usually because they do not understand the legalities of cohabitation, and what happens when cohabitees die without a Will. However, on the positive side, when cohabiting couples with wills were surveyed, 80% stated that creating a will provided peace of mind regarding their family’s future, especially if they had children.
Despite the difficulties people may face in the thought or practicalities of making Wills, being prepared can help to avoid so many unnecessary costs and stresses for your partner, after you’re gone, so contact our team to make an appointment today.
Contact our Will and LPA Solicitors in Preston
Why Lasting Powers of Attorney are important for Cohabitees
A Lasting Power of Attorney (“LPAs”) allows individuals to designate a trusted person to make medical or financial decisions on their behalf if they become incapacitated, for example, if they lose capacity due to a diagnosis of a disease, such as dementia, or if they fall into a coma. For cohabiting couples, establishing LPAs for each other is essential because, without them, the law does not automatically grant the partner the authority to act on behalf of the other.
Ensuring Medical and Financial Decisions Reflect Their Wishes
There are two main types of LPAs:
Health and Welfare LPA:
Grants authority to the Attorney to make decisions about healthcare, medical treatment, and even end-of-life care, if the individual is unable to do so. With an LPA, cohabiting partners can ensure that the person who best understands their preferences and values can make decisions about their health.
Property and Financial Affairs LPA:
Allows the Attorney to handle financial matters, including managing bank accounts, paying bills, or selling property. This type of LPA can help the partner manage shared finances or take care of their cohabitee’s financial matters, without difficulties.
Without LPAs, there would be no one in place with legal authority to make these decisions, leaving a cohabiting partner facing difficulties and uncertainty about where they stand with their, and their loved ones, finances.
Reducing Stress and Avoiding Legal Complications
When one partner dies or loses capacity, it is already a difficult- and stressful- time. The absence of legal documents, such as Wills and LPAs, can lead to increased stress, often emotional conflict between families, and the increased costs of attempting to get equivalent legal authority in place, to ensure you can deal with your loved ones affairs. Preparing Wills and LPAs in advance not only protects the rights of each partner, but also provides peace of mind, reducing the emotional and financial burden on the surviving partner.
Protecting Children and Dependents
For couples with children, making a Will is vital to ensure their care and future inheritance is protected. A Will can specify a legal guardian for minor children, as well as the distribution of assets into a trust, protecting their inheritance for their futures. Without a Will, the law may not recognise the surviving partner’s wishes, leaving children’s care and inheritance unclear.
Bespoke Legal Documents for Bespoke Circumstances
Cohabiting couples, and indeed families who are in second or third marriages, often have more complex financial and familial situations than married couples who are in a first marriage. They may own property jointly, have children from previous relationships, or have other dependents. Wills and LPAs allow for bespoke financial and future planning to reflect each partner’s unique financial and personal circumstances. For example, a Will can specify how assets should be divided among children, stepchildren, or other loved ones, while an LPA can ensure each partner manages each other’s personal affairs, with replacement attorneys nominated for when partners are unable to act for each other.
Normal Steps for Creating Wills and LPAs
The process of creating Wills and LPAs is relatively straightforward and typically involves:
Arranging an appointment with a qualified, legal professional to ensure that you receive tailored legal advice, and you can have in depth discussions about your Wills and Lasting Powers of Attorney, and your circumstances.
Discussing the future and necessary decisions together to confirm what your wishes would be, so you are prepared for if decisions need to be made down the line.
Reviewing and updating Wills and Lasting Powers of Attorney regularly to adapt these to your circumstances, if these change. Our Wills and Lasting Power of Attorney Solicitors in Preston are here to help, and can assist with annual – or less frequent, if you prefer – Will reviews, to ensure these are maintained and up to date, as your life changes.
Legal Fees for making Wills and Lasting Powers of Attorney
Initial Consultation
30 minute appointment
Covers any Probate dispute, Wills queries, LPA queries, transfer of property to a family member or friend, tax and care home fee advice
Does not include consideration of any documents or preparation of any written advice.
£125.00 plus VAT
Will writing fixed-fees
Single Wills
30 minute appointment to discuss your requirements for your Will, and your wishes.
Preparation of your draft Will, and making reasonable amendments (if required)
Arranging signature of your final Will
Storage of your final Will
Registration of your Will with Certainty, the National Will Register (if required)
Does not include any additional work required, such as full advice about inheritance tax or the inclusion of trust provisions in your Will.
£185.00 plus VAT for simple single Wills. If you include trust provisions, the fees can be higher. Please contact us for your bespoke quote.
Mirror Wills
30 minute appointment to discuss your requirements for your Wills, and your wishes
Preparation of your draft Wills, and making any amendments (as required)
Completion of your final Wills
Storage of your final Wills
Does not include any additional work required, such as full advice about inheritance tax or the inclusion of trust provisions in your Wills.
£345.00 plus VAT for simple mirror Wills. If you include trust provisions, the fees can be higher. Please contact us for your bespoke quote.
Lasting Power of Attorney fixed-fees
30 minute appointment to discuss your requirements for your LPA and to ascertain capacity
Preparation of the LPA
Attendance upon you to go through and complete your LPA, including giving any advice required
Sending the document to your Attorney(s) for signature
Sending the document to the Office of the Public Guardian for registration
Arranging for collection of the original LPA following registration
One LPA £300.00 + VAT plus Registration fee - £82.00* Both LPAs £450.00 + VAT plus Registration fees - £164.00* Four LPAs £750.00 + VAT plus Registration fees - £328.00* *Unless you qualify for a fee remission or exemption
Contact our Wills and Lasting Power of Attorney Solicitors today
For cohabiting couples, Wills and Lasting Powers of Attorney are more than just legal documents—they are essential for protecting each partner’s future and decision making. In a world where the rules of intestacy favour traditional relationships, making Wills and Lasting Powers of Attorney can offer peace of mind, financial protection, and the assurance that, whatever the future holds, each partner’s interests will be protected.
To make Wills and Lasting Powers of Attorney, contact our expert Solicitors in Preston via email to wills@mglegal.co.uk, or call 01772 783314, and our Solicitors, Naomi and Hope, will be happy to assist.
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