Death and the unmarried couple: what happens to the house?

It has been reported that the Deputy Prime Minister, Nick Clegg, has denounced David Cameron’s proposal to give tax breaks to married couples. Although I am a supporter of improved legal rights for cohabiting couples, I disagree with Nick Clegg’s opposition to the idea that, in his words, the state should use the tax system to encourage a particular family form”. I believe that unmarried couples should be recognised in law, but also that those who choose to marry should get recognition and benefits recognising the important of their commitment.

However that shouldn’t keep the law from addressing the needs of all couples. The Government spat came in the same week that the Law Commission published a final report called Intestacy and Family Provision Claims on Death, in which it proposed to give certain qualifying couples in a cohabitating relationship rights to automatic inheritance on intestacy.

The report highlighted some startling figures: it is estimated between half and two-thirds of the adult population of this country do not have a will. It is thought that those most in need of a will – such as cohabitees – are more likely not to have one. The report also pointed to an ignorance of the law in relation to death, and particularly what happens to the estate of a deceased person who dies without a will (“intestate”) whether married or unmarried.

I know about the injustices that can occur all too well, because I often encounter couples who don’t know what will happen if one of them dies intestate, or  with a will that makes insufficient provision for all of that person’s dependents. Such dependents can include include a former wife, a cohabitee and children.

A few years ago I acted for a very pleasant man who was getting divorced. He was in his late 30s and had two young children. His new partner was an equally pleasant woman, and I met her a couple of times during the divorce. The case settled, and he arranged to pay continuing maintenance to his former wife for the young children. He gave his wife his share of the marital home as a clean break.

I never expected to hear anything further. Sadly, about ten years later, his partner came to see me with bad news. My former client had been killed in a road accident. He had never made a will, and therefore died intestate.  The couple had never married or had any children. Under the intestacy rules, his partner had no automatic entitlement to any of his estate. Instead the estate was automatically inherited, in its entirety, by his two children who were still under 18. As the children’s guardian, the man’s former wife was in charge of obtaining the probate (called “a grant of letters of administration” when there is no will). So his former wife was claiming his share of their home on behalf of the children.

My former client and his partner had bought their property together, as joint tenants. They believed that his half-share would automatically pass to her (as it did), but were unaware that a claim could be made against his share of the house on behalf of the children.

In previous posts I have explained the difference between people buying a property together as joint tenants and tenants in common. In this case they had agreed that each other’s share would automatically pass to the second partner on the death of the first, so they had bought the property as joint tenants and had both contributed what they could afford. At the time of purchase the couple had taken out a joint lives policy to cover the mortgage. This was now paid off following my former client’s death, and his share of the house was worth a significant amount of money. He had also left an estate of about £200,000 in savings, and a policy which had matured. All of it was inherited by the children and she got nothing – apart from a claim on half a house that she had understood would always be hers.

This lady had lived very happily with her partner as man and wife, and when she came to see me she was understandably in a bad way. She had earned far less than her late partner. On top of her bereavement, she was now facing the prospect of losing her home.  She had found out, in the worst possible way, how cruel the law can be when there is no marriage and no will.

What if she had been married?

Under the intestacy provisions for married couples, this lady would have inherited the first £250,000 and had a life interest (the income) in half of amount remaining. Her partner’s children would have inherited the other half outright.

If there were no children, the wife of an intestate would inherit the sum of £450,000 outright, with a life interest in half the rest, and the remaining amount passing to surviving parents and siblings. This is not very satisfactory, but better than nothing at all.

So what were her options?

In this case, the Inheritance Provision for Family and Dependents Act 1975 applied. It was amended in 1995 on the recommendation of the Law Commission. A dependent cohabitee or, from January 1996, a cohabitee who is not a dependent but who lived with the deceased as man and wife for a period of two years immediately prior to the death, can make a claim for financial provision.

The court can make orders very similar to on divorce: maintenance, lump sums, transfer of property orders and so on. In this case, following a negotiation with the partner’s former wife on behalf of the children, an agreement was reached. A lump sum payment was to give the children all the child support they would have received had their father survived. The children were nearing their 18th birthdays, and we included some provision for university education within the calculation. The rest of the estate went to my client – including the house, which she kept. The estate paid all the legal costs.

The Law Commission’s next steps

Very few people are aware that their automatic entitlement is nothing at all if they are unmarried and their partner dies intestate. Even married partners are left in difficulty because of the archaic nature of intestacy law. This is an area that certainly appears to be in need of urgent reform.

The Law Commission’s report is accompanied by two draft bills. The Inheritance and Trustees Powers Bill (summarised here) proposes that if a spouse dies intestate, the entire estate will pass to the surviving spouse when there are no children or other descendants. When there are children, the Bill aims to simplify the sharing of assets. These suggestions make good sense and are years overdue.

More radically a second draft bill, The Inheritance (Cohabitants) Bill, would give unmarried partners who have lived together for five years the right to inherit on one another’s death. If the couple had a child together, this entitlement would accrue after two years’ cohabitation, provided the child was living with the couple when the deceased died. As the Law Commission has made clear, there is much here that is controversial, and support for the reform is by no means universal.

As the Law Commission also recognises, at present there is no law for regulating unmarried couples who have simply split up. As we now know, there will be no such provision in this Parliament. As always, however, the reasoning of the Law Commission is measured, restrained, cogent and above all, it is persuasive.  It is practical and reflects an appreciation of the realities of modern life in the UK.

But what will the Government make of the latest proposals? Perhaps the fact that there are two draft bills, tells its own story. I think we will see change for married couples and intestacy. It is difficult to see any controversy there. When it comes to unmarried couples, however, I am far from certain about changes in the law relating to intestacy and automatic inheritance. Current disagreements within the Cabinet only serve to enhance my doubts.

In the meantime, whoever you are and whatever your circumstances, if you don’t have a will then please make one. There is no time like the present!

26 comments

David - December 20, 2011 at 7:33pm

This is very blinkered. You need to think about why he didn’t want to re-marry. Bad divorce law causes less and less marriages strikes again.

Marilyn Stowe - December 21, 2011 at 8:51am

I can’t remember why this couple never married, but I featured them as an example of two people who never thought either would really die prematurely and who thought in any event, even if it did happen, legally they were protected.
They weren’t. They were like most people who don’t think about making a will because wrongly they believe everything will be ok if they die:- which anyhow won’t happen.
Solicitors working in my field normally only ever get to meet people who up to a certain point have naively assumed they will never be touched by life or death then find they have been and the law will be applied unfairly, and it could have been avoided.
The law is the law:- and taking time to understand it and making provision in advance, will make a real difference to many people’s lives.
Marilyn

David - December 21, 2011 at 9:50am

Thanks for that.

The Law is the Law. Well said. Probably true also.

My point was that, the law being the law (when it comes to marriage), being in the same position as the man was here, I don’t want to get married again either. I don’t want to put my life in the hands of those Muppets who sit in family courts.

I do take your point on making a will though. I have done so and left it all to my parents. They can distribute among my various children and exes.

I think we may be violently agreeing here. Except of course, that I can’t remember your PoV on Miller and McFarlane. Perhaps you don’t have one, in which case I suggest you should have one, for without leadership we go down the plug hole together, bit like the Euro, again.

JamesB - February 6, 2017 at 9:19pm

How would it go if I die intestate?

I have four children. First two with ex wife. Third with girlfriend. Fourth with current wife. Who gets what out of my meagre estate please? Answers on a postcard / gratefully appreciated please?

Would it all go to my current wife? Three children? Four children and wife? What percentages? Answers appreciated please.

Actually I have a will and it says it will all go to my father, for the same reasons as David, however I am thinking of changing as he is very ill with motor neurones and perhaps unable to sort out and I am not sure I trust anyone else enough. So am thinking of tearing it up, but want to see what the intestate rules say first.

Re doing another will, I don’t fancy that as I have done it twice and didn’t like the process either time but may have to I suppose. Just each time I have a child or get divorced or change my mind I have to change it, sigh. Is a drag. Should be able to do it for free on a government website.

David - December 21, 2011 at 9:52am

p.s. I only really have one point, I don’t want to put my life in the hands of those Muppets who sit in family courts and will avoid that as much as possible. I found them really very poor indeed and certainly overpaid for there nonsense.

Rachel - December 21, 2011 at 11:22am

David, if we didn’t have the Muppets many women would be short changed by their husbands when it came to financial provision after divorce! Do you accept that some husbands (or wives) will always try to persuade a spouse, in a less strong financial position, to agree a settlement which could be unfair? I do not think judges always get it right. The family legal system is a minefield for both parties and judges do have the discretion to grant orders which can seem unfair to one party or the other. It is inevitable that there will always be a disgruntled party. The law is designed to protect the weaker party and this can be perceived by the stronger party as an unfair system!

JamesB - February 6, 2017 at 9:22pm

The law was designed to protect people. It is manipulated by the rich and is best avoided if at all possible. I do not accept your preposition that it benefits women, in effect it does the opposite by – as someone said above – discouraging marriage. We need to move to a Scottish type system where prenups are legal and scrap the csa, what we have in E and W is absolutely disgusting.

Marilyn Stowe - December 21, 2011 at 12:27pm

My understanding is that when Family Arbitration begins on 22nd February 2012, when the names of those appointed as Family Arbitrators will be published, these problems can be circumvented.
I have today seen a new client whose concerns centred around the approach of a part time Deputy Judge, (who was not an experienced family lawyer) and Im sorry to say that I think that inexperience did show and it did affect the outcome.
Perhaps more financial cases will be dealt with in arbitration which I understand is faster and for most couples will also be cheaper. Couples may appoint their own preferred arbitrator in whom they both have confidence. The outcome will be legally binding upon the parties and as the arbitration will only be dealt with by the most experienced family lawyers in the country, thus the process will have been managed and the outcome determined with the benefit of that skill and experience.
http://www.familylawweek.co.uk/site.aspx?i=ed90447
Marilyn

David - December 21, 2011 at 1:59pm

Rachel, the law on this subject is a F&^$ing joke. For example, someone can be an heiress and live off a trust and be classified as poor and in need of maintenance. I could make many such observations over many pages, but like I say, faced with the choice, as I am, take it or leave it, I will leave it and advise the same for my children.

Lynne Bastow - December 22, 2011 at 5:02pm

If only a will was the recipe for a happy ending. Remember Richard Sherrington, the millionaire solicitor who left everything to his second wife? The vast litigation that followed with his first wife and three adult children proves that the only certainty in life is death and taxes….

Sarah - February 14, 2012 at 2:30pm

I have cohabitated with my partner for nearly 12 years. We have a house together, I think as tenants in common (whatever the one is where the house is jointly owned but in unequal shares). My partner had a very messy divorce and although we have built things up together again – i.e. i don’t earn what he does and couldn’t but equally he doesn’t put the effort in at the home or his children or organising absolutely everything including down to his socks. I do it all. And work as PA to the CEO of a private bank i.e not a non-busy role. We discussed marriage and his requirement for a pre-nup. I have no problem signing a pre nup. I just won’t sign one that suggests I take out the amount I put in which was 1/3rd share of a flat, £40k, £12k for every year we had been together and costs of the garden which I rebuilt up from the move with plants which came out of my earnings or were family roses belonging to my grandfather. My partner came with nother. He lived in my flat for a couple of years before buying the property upstairs (so he had more space when he had the children x 3 at alternate weekends). I did up both flats and we decided to move in 2006 to a substantial house but we dicided we should build it up whilst we could both afford to pay mortgage whilst we were earning. He liquidated a lot of US stock to put in to the offset mortgage account, again fortunately as the stock then later would have been worth less than 10% of it’s original worth. Luck than judgement but it worked. I packed and moved all the boxes – unpacked – arranged – found decorators and spent hours and hours and months and several years slowly doing the house up. I have an Interiors Design business which I did all the work through so we could benefit from the discount where possible. My partner’s contribution was zero effort but he did fund the various projects and all was agreed well in advance of any thing happening. We are now in no mans land of my lawyers cannot advise me to agree with the pretty harsh pre-nup suggestions given to sign. They say nothing of my contribution has been taken in to account and there was mention of my partner also wanting to deduct some credit cards he had paid off for me (at least 75% of them I hadn’t asked him to – the other 25% I was still paying off myself although slower than he would have liked and stepped in again on a couple of occassions to pay them off but I did that with agreement- the others not). There was nearly £50k on the cards due to an ex having spending spree and i didn’t know until too late. My partner knew exactly why and how debt created. I am grateful for his assistance but for 2 years I paid £1000 a week to him to clear some of these debts, and also to pay off a car purchase for my father’s 70th birthday of £15k. I recognise it was an act of kindness but no repayments have now ever been discussed and it’s assumed a ‘soft loan’. Then the pre-nup appeared with the deductions plus outstanding mortgage from my previous flat deducted – but I’ve been paying the mortgage on the house we are in now – so how has it not moved from the £140k mortgage 6 years ago?!90% of the furniture in the house belongs to my family or myself
My question is – we can’t get seemingly cannot be married because it is impossible to do for the old traditional love reason which I’d always win on – and my lawyers cannot recommend I sign the pre-nup as it is. I’m not a threat – it’s very depressing and has affected the relationship alot with offended feelings flying back and forth. not great. If we seperated now, with no children as yet (although we are trying for one), is it possible that I can fight for a larger proportion of the house (7% is approx what I own and he was trying to get that down to 5% by taking all the deductions off to start with….crafty but I didn’t agree with the deed of trust % so he has never produced again and there isn’t one). I feel I have honestly made a massive contribution in time, effort, but sadly not as much finance available to me for anything more than that, and feel it would be foolish to adopt a roll over and accept whatever is thrown at me attitude by him. He is scarred from the divorce – lost 1/3rd of his worth in the divorce, and I know he doesn’t want to lost a dime more. He is worth approx £5m. Obviously much more that I haven’t been able to write here but what are the circumstances where I would love to get married – his commitment to me in his own words is the joint ownership of the house and possibly a child – and marriage is ‘just a certificate’ which at times I haven’t proven myself to deserve! Yes – honestly! What was a good relationship is disintegrating rapily and I would like some bullet point answers on yes possible to gain a larger holding on the house by doing xyz – I don’t agree morally with the having a child to secure if we break up he needs to provide somewhere for us to live which I wouldn’t own but have the use of for next approx 25 years. I am 42. He is 49. I have not been married before. I waited for right time.

Vince Lavin - January 5, 2014 at 5:48pm

My partner has just die and I’m try to act as administrator can I do this as we weren’t married? Or would a family member have to do it?

Dakotah corbin - January 10, 2017 at 7:08am

This has been the most detailed and informative article I have read yet. I am 23 and my fiancé just passed. We have a 2 yr old son and have cohabitated for the past four years (in 4 separate places) . Last year, April of 2015 we bought a house. The deed is in his name and as far as I know my name is not anywhere on the loan papers. We live in West Virginia too, so I don’t know how much help you can give me but anything is appreciated. We had quite a few assets that have sadly been taken from my son and I. I don’t want to lose our house too. We paid the life insurance policy on our house for this reason exactly and now his ex-wife and parents are desperately trying to take it. What can I do?

Sylvia - February 6, 2017 at 1:30pm

Hi my partner as a will but says the children to his first marriage inherit house if he dies what can I do to still live in the property can they kick me out

george buttigieg - February 24, 2017 at 5:55pm

my ex common law partner passed away and her family children brothers and sisters will not allow me a copy of her death certificate therefore i am not able to take my ex common law partner off the title deeds and mortgage is it legal for me to go to the registry office and get one myself or am i not allowed to do it i also forgot to mention that my partner relinquished all rights to the property and i had to pay her a said amount which we both agreed all this was done through the legal process from both sides and all monies have been paid to my ex partner so she no longer had any legal hold on the property i also have a copy of the paperwork with both our signatures on and both solicitors on please can you let me know where i stand as the morgage company will not do anything without a death certificate as proof

Andrew - February 24, 2017 at 8:51pm

In England? If so anyone can get a death certificate for a few pounds.

Bob - March 13, 2017 at 12:59am

My great aunt passed away December 2015 leaving a valid will naming just me as a beneficiary. Her boyfriend of nearly 10 years has put a inheritance act claim against the estate and he’s still living at the property putting a block on executors signing anything over to me and even trying to stop me putting my aunts nd uncles gravestone up what are my rightson as beneficiary

Michelle evans - May 29, 2017 at 11:38am

Just wondering: living with unmarried partner for 25yrs in rented accommodation little to no assets except contents of home. when either of us die can children remove all the contents of our home leaving survivor with nothing

sue - September 15, 2017 at 11:03am

What I don’t understand is why does the ex wife / ex girlfriend get the probate just because they have his kids the law says an unmarried partner or girlfriend can not apply for probate but when they have kids they can .. my problem with this is if the ex and the intestate person had a nasty split up who is to say they will divide the estate as it should be done when there was animosity . do we just have to sit and hope they do the right thing .?
in my opinion if the heir to an estate is under 18 it should revert back to the next blood relative to divide as the intestate rules say not a non blood relative who is or could be angry at the person who has died ..
my 25 year old son died and has 3 children from ex girlfriends .. one of those ex,s has got probate and refuses to contact the other ex who has 2 children from my son I as his mum should be able to take over his estate and divide it up for all the children but I cant as the law says his ex has to and now she will keep t all to herself and I doubt very much her child will receive any of it she will spend it …. how is that right please tell me as I am struggling to get my head round this

Usha - November 13, 2017 at 3:09pm

I was married thru a religious wedding. My partner and i have 2 kids together we been together 17 years. He passed away last year april due to a heart attack we never married thru civil rights. Now that he passed away wth no will . The law does not recognise me as his comon wife wat do i do in this situation. I can not be his excutor either. My husbands lawyer wants to be executor of his estate which im not happy about. Plz give me some advise.
Despate South African Durban

Cameron Paterson - November 13, 2017 at 3:23pm

Hello – I’m afraid we’re based in the UK and so can’t advise on South African law

sue - November 13, 2017 at 3:29pm

can you advise on my situation please the one above this one
thanks

Cameron Paterson - November 13, 2017 at 4:10pm

Hello – I’m not a lawyer so can’t do so personally but I will try and get an answer from a solicitor for you

Cameron Paterson - November 14, 2017 at 10:36am

Dear Sue

Having reread your earlier comment, I now realise I am little unclear as to the question you were looking for an answer to…could you clarify?

sue - November 14, 2017 at 10:42am

why does the law allow an ex girlfriend with a child under 18 to have probate when under intestate law unmarried partner can not receive it in essence the ex partner is receiving the estate and not a blood relative surely it should revert back to a blood relative to divide and put in trust for any children as the mother can spend it and not give to the child

Cameron Paterson - November 17, 2017 at 7:17pm

Hello – I now have a response for you from Senior Solicitor Jane Gray. If you would like advice, you will find the contact details of our nearest office on this page.

“The Intestacy rules operate when an individual dies without a valid Will. If an individual dies unmarried with children who are under the age of 18 then the estate of the deceased will be held on special trusts for the benefit of all of the children until they reach 18 years. In this case the surviving parent of the child due to inherit has the right (as the guardian with parental responsibility for that child) to apply for a grant of letters of administration to hold the estate on trust for the child. They are however under a strict legal duty to hold the fund for the benefit of the child and they will need to appoint a neutral co trustee. Their role is fiduciary which means they are bound to carry out strict legal duties as a trustee. They are not allowed to personally benefit from the fund and to do so would be a breach of trust which is a criminal offence. There are certain situations whereby part of the fund can be released for the welfare and benefit of the child before they reach 18 years but these powers need to be exercised very carefully by a neutral trustee. I hope this helps.”

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