As the amount of co-habiting couples and blended families increases so does the misconception that co-habitation creates a “common-law” marriage. In reality, simply co-habiting with a partner, does not automatically provide an individual with the financial protection they may require should tragedy strike.
In the event of tragedy, if no Will has been made, whilst a co-habiting partner may have a claim against their late partner’s estate, as with all litigation, there is no guarantee of a successful claim. Such a claim would take into account all circumstances, including any other persons the deceased partner may be maintaining including partners and children from a previous relationship.
At a time when emotions are already running high, the last thing that a bereaved partner wishes to think about is money. A short six month time limit for any claims under the Inheritance (Provisions for Family and Dependants) Act 1975 (IPFDA) can only seek to add to any stress the surviving partner and other family members are already suffering.
With 3.6 million couples in the UK now cohabiting compared to 1.5 million in 1996, it is more important than ever for these couples to consider the importance of putting in place a Will. In these circumstances, a Will would allow the couples to not only ensure that their estate avoids the added stress and complications of intestacy, but to also ensure that their assets pass in accordance with their wishes. It would also provide the reassurance that the person they have chosen to spend the rest of their life with, does not suffer further emotional stress on their death.
Failure to consider the potential risks and recommendations that your client makes a Will may result in a cohabiting partner who fails to inherit under the laws of intestacy issuing an unwanted IPFDA. If it transpires that the surviving partner’s financial position and probability of a claim were not considered during your instructions, there is a possibility that you may be found negligent. Furthermore, cohabiting partners should be made aware that spouse exemption for Inheritance Tax is not available, even if they do make a Will, meaning there could potentially be a large Inheritance Tax liability.
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