Our relationship status at the time of our deaths plays a key role in how our estates are dealt with. However, the last thing you are likely to be thinking about when getting engaged or moving in with a new partner is what will happen when you die.
Common misconceptions – marriage
Firstly, it’s important to understand that there is no such thing as a common law marriage. If you have not entered into a legal marriage or civil partnership, your long-term partner will have no right to inherit your estate unless you leave a Will making provision for them.
Another key point to note is that a marriage in the UK will revoke any earlier Will. If you don’t make another Will after your marriage, your estate will be dealt with in accordance with intestacy rules.
These rules are quite rigid which provide that if you don’t have any children, everything goes to your spouse. If you do have children, your spouse will inherit the majority of your estate and your children will get a smaller share.
To avoid any unintended consequence, you should think about making a Will in contemplation of a marriage, leaving you to enjoy your wedding and honeymoon.
Divorce
Divorce also has an impact on your estate, but it does not have the same consequence as marriage. A divorce will not automatically revoke a Will, but your ex-spouse will be treated as if they had died on the date that the marriage was dissolved. Yes – your ex really would be ‘dead to you’.
This means that your ex-spouse could not be an executor and could not inherit under a Will dated before the divorce.
If for example, you made a gift to your spouse in a Will and then divorced, they can no longer inherit that gift. It might be a substantial gift like a property. If there’s no substitution clause that says what happens if that person dies before you, then that property will fall into your residuary estate. And if you haven’t thought carefully about who your residual estate is being left to, this can give rise to unintended consequences. You could also end up with an intestate estate if your spouse was the only beneficiary of your estate and you do not have children.
It is important to revisit your Will on divorce and to take advice before the divorce is dissolved.
If you do not have a Will and are divorcing, you should ensure you obtain a decree absolute. Your marriage will not be dissolved for the purpose of your estate until you do. Until it is obtained, your spouse would still stand to benefit under intestacy rules.
If you are domiciled in another country at the time of your death or are married in a jurisdiction other than the UK, you may need to take advice from a lawyer in that jurisdiction.
Co-habitation
Regardless of what your Will says, or whether you even have a Will, your spouse, ex-spouse, and any co-habitee of more than two continuous years may have a right to claim for financial provision from your estate. This right is set out in the Inheritance Act 1975.
To reduce the risk of a dispute arising after your death, it is important to think carefully about the relationships you have and whether reasonable financial provision has been made for them from your estate.
It also important to communicate with your loved ones about your relationships to avoid any dispute arising in the future. Many cases that have come to court turn on whether someone was a co-habitee or, in fact, a lodger or friend. A co-habitee for these purposes is defined as a couple who have been living in the same household as a married couple or civil partners. Considering whether a couple were living in this way can involve a detailed examination of the relationship including, but not limited to, your finances, your intimate and physical relations and how others viewed your relationship. Clear communication can reduce the risk of being subjected to such scrutiny and can reduce the risk of disputes arising.
If you have been left unprovided for following the death of a spouse or co-habitee, you should seek legal advice quickly, as there is a time limit of six months from the date of the Grant of Probate being issued, to make a claim for financial provision.
The key takeaway
Any major change in your relationships should prompt you to review your Will and estate planning and to obtain legal advice at the earliest opportunity.
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Email: Jenny.ray@dmhstallard.com
