Marriage and Civil partnership VS Co-habitation and Common law
Final duties break down the legal differences between Marriage, Civil partnerships, Co-habitation and Common law
It is extremely important to understand you and your partners legal standing in the event of one of your deaths, unfortunately it is an issue that is commonly misunderstood or completely unknown for a lot of couples in the UK. Whether you are married, in a civil partnership, co-habiting or common law partners, what happens to your estate upon death is reliant on the legal status of your relationship. Unfortunately not taking the proper precautions can lead to a lot of distress, disputes and even court cases in some circumstances. Understanding how the law recognises your relationship and what entitlement you have will allow you to take the necessary actions whilst you still can and ensure your loved ones are looked after.
The Oxford English dictionary defines marriage as “The legally or formally recognized union of two people as partners in a personal relationship” In the UK marriage can be between two people of an opposite gender or two people of the same gender.
There are benefits to being married when it comes to rights to inherit, inheritance tax and estate administration. As a spouse you are protected by law under the Rules of Intestacy, this means if your spouse has not left a valid will you are still entitled to inherit from their estate. Spouses are considered the most direct next of kin and take priority over blood relations.
There are also inheritance tax benefits to leaving your estate to your spouse, the first being that there is no Inheritance tax to pay on assets being passed between spouses (although there are sometimes in certain circumstances exceptions to this rule). When you pass your estate to your spouse you also pass you Nil Rate Band which entitles your spouse a higher inheritance tax threshold on their death.
Citizens advice defines civil partnerships as “a legal relationship which can be registered by two people of the same sex who aren’t related to each other.”
The benefits of a civil partnership is that if you are in a same-sex relationship your partnership is legally recognised, this means you will have additional legal rights and responsibilities. When it comes to Inheritance tax and Estate administration civil partners are entitled to the same property rights, inheritance tax exemptions, social security and pension benefits as married couples. This includes the right to inherit under the rules of intestacy and the transfer of their Nil Rate Band.
The government website provides a comparison of civil partnership and marriage for same sex couples which you can read here.
Common law spouses
Common law husbands or wives are not legally recognised under British Inheritance laws, and therefore no provision is made for them under the Rules of Intestacy. This means that they will not be entitled to inherit upon the others death, and the deceased’s estate will be distributed to their next of kin.
To ensure that your partner will be provided for after your death you must write a valid will naming them as a beneficiary of your estate. If you do write a will leaving your estate to your partner they will still not receive the same tax exemptions that a spouse would.
Living together/ Cohabiting
Although there is no legal definition of living together, it generally means to live together as a couple without being married or in a civil partnership.When it comes to inheritance and estate administration you do not have the same rights when the relationship is not legally recognised, this means you do not receive the same tax benefits or rights to inherit.
To ensure that your partner inherits it is important to write a will instructing how you want your estate to be distributed. This is especially important if you own assets in your sole name or if you own property together as tenants in common. When one partner dies without leaving a valid will, Living together or cohabiting does not give you the same legal entitlement to inherit as a spouse/civil partner or family member. When there is no valid will their estate would be subject to the rules of intestacy, these rules prioritise spouses /civil partners and family members. The laws of intestacy will designate your next as kin as your beneficiaries, without the correct precautions in place your partner may be forced into giving up assets you wanted them to have.
Your partner will only inherit assets you owned together, in joint names. The surviving owner will automatically inherit these assets regardless of your relationship with them through the rights of surviviorship for example, joint bank accounts or a property owned as joint tenants. Where survivorship is not applicable is when property is owned as tenants in common. Without a valid will stating who should inherit the deceased share of the property, it will be distributed according to the next of kin entitled by the rules of intestacy. In some cases this can lead to the surviving partner having to sell the property for the deceased’s beneficiaries to receive their share.
Under certain circumstances you can apply to the court to receive from the estate or more of the estate if your partner dies without leaving enough or no provision for you and you were financially reliant on them.