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Written Wills for Unmarried Couples

Written Wills for Unmarried Couples
12 January 2018

Having a written will (a 'last will and testament') is especially important for unmarried couples to ensure their partner inherits.  The 2011 census reports that married people are now a minority of the UK population with the number of families based around a co-habiting couple us up by almost one third in the past decade.  The number of older couples deciding not to marry is also on the increase and they can be particularly hard hit if either partner dies intestate.

Unmarried couples and the right to inherit

There is still a widely held view that a 'common law' spouse is recognised by the law.  This is simply not true.  If you are an unmarried couple and one of you dies then there is not an automatic right for your partner to inherit.  This is quite different from married couples where, even in the absence of will forms having been completed, a surviving spouse has certain rights to inherit.

Unmarried couples with families and assets from previous marriages may not even be aware that they need to update their wills to recognise their current partner.  If one of the partner dies without having made sufficient provision for the other partner in a will then the surviving partner might be able to make a claim under the Inheritance Act 1975.  If the couple had been co-habiting as husband and wife for a minimum of 2 years then a claim can be made.  This, however, is not a simple process and the surviving partner would probably have to engage the services of a specialist inheritance solicitor and go to court.

Various changes have been proposed, in recent years, to change the inheritance situation for unmarried couples.  It seems likely that some change will occur but exactly what and when remains unclear.  One of the changes proposed by the Law Commission is that the surviving partner should automatically receive a share of their partner's estate (whether will forms have been completed or not) under certain circumstances.  If the couple had been co-habiting for 5 years at the time of death or for 2 years with a child then then the surviving partner would have the same rights as a spouse.

It seems likely that legal reform will eventually make things easier for unmarried couples to automatically inherit from their partner.  Until these changes are enacted, however, it's essential that unmarried couples make a will setting out their intent for their partner to inherit.

Will forms and drafting a will

There are several ways to go about writing your will:

  • hire a solicitor
  • use the free will writing service offered by may charitable organisations (in return for you leaving them a gift in your will)
  • draft it yourself
  • use pre-drafted will forms.

There is no legal requirement for a will to be written in a particular way, but you do need to be careful to ensure that the wording is correct and certain key clauses are included in order that the will is legally sound and your intentions are clear.

If your financial affairs and family circumstances are relatively straightforward then you could consider drafting your own will using pre-drafted will forms.  You can buy will forms in paper format from high street stationers and even some supermarkets.  Alternatively, there are many on-line suppliers, such as Clickdocs, who provide electronic will forms that can be tailored to suit your circumstances and re-used as many times as you like.

As ever, if you have specific concerns, significant assets and/or complex family relationships to consider then it would be wise to see legal advice before drafting a will.  Solicitors can, of course, help but there are also other agencies who may be of use such as you local Citizens Advice Bureau.

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