20 Jul 2021

Wills & Probate

Estate Planning: Considerations for Cohabiters

Data released by the Office for National Statistics in 2019 showed that the traditional household, consisting of a married couple with children, was giving way to a growing number of cohabiting couples and families, with ‘common-law partners’ increasing by 25.8% in just 10 years [1].

With our living patterns changing as an increasing number of people put a hold on (or avoid altogether) the big white wedding, what many don’t realise is that there is very little legal protection for cohabiters, despite its rapidly growing popularity. Afonwy Howell-Pryce, an Associate in our Wills and Probate team, examines some of the steps you should take to avoid putting your partner, your finances and your property at risk.

Estate Planning is the process of mapping out how you want your estate to be handled after you’re gone. Unlike writing a will, however, estate planning goes beyond simply dividing up your home or finances and also makes plans for your health and wellbeing should you become unable to do so. Detailed estate planning can also give you greater control over your money, as setting up trusts or making gifts to loved ones can help reduce the level of tax you incur.

For cohabiting couples, the need to plan out your estate is even more important as ‘common-law marriages’ (unmarried cohabiting couples) are not recognised by the legal system in England and Wales, regardless of the length of relationship and even if you have children together. This means that if one person were to become incapacitated or pass away without a plan in place, the surviving partner could face enormous personal and financial difficulties – with the rules of intestacy resulting in any assets being automatically handed over to children or siblings of the deceased. Any challenges to the deceased person’s estate would mean going through a potentially lengthy legal process, putting strain on your partner during what will already be a difficult time.

If you’re a cohabitee looking to put your affairs in order, then you’ve come to the right place. We’ve detailed below some of the key steps you should consider to ensure you’re ready for the future, whatever that may hold.

 

Writing a Will

Unlike married couples, cohabiters are not automatically entitled to any assets, meaning a watertight will is a great starting place for anyone looking to protect their partner in the event of illness or death.

You can set out who should care for your children (if they are under 18), how you’d like your finances to be divided (ensuring your partner has enough to live on) and perhaps most importantly – who will be entitled to your share of any property you may own or pay a mortgage on.

Many cohabiting couples are registered as Tenants in Common, which can mean you own different shares of the property. Without a will in place, your portion of the house would be subject to intestacy laws and wouldn’t automatically be transferred to your partner if you were to pass away. Having a valid will in place ensures your loved one isn’t at risk of losing your home, should something happen to you.

If you’re uncertain about what to include in your will, then make sure to read our recent blog – Making a Will? What should you include?

 

Lasting Power of Attorney (LPA)

There are two types of LPA – one for health and the other for your finances. Both are equally important for cohabiting couples as you aren’t granted the same rights as married couples – who will automatically have the authority to act as next of kin.

While none of us like to think about the fact that we may one day lose the ability to make key decisions regarding our wellbeing or how our money is spent, by formalising these decisions through estate planning, you’re able to ensure that your wishes are followed. This is particularly important when it comes to end-of-life care, as without an LPA in place, your partners’ thoughts (even if they are simply confiding your last wishes), do not have to be considered.

Naming your partner as your Attorney would give them the legal platform from which to make key decisions about the life you’ve built together. You can, for example, share with your partner your wishes for where you’d like to live if you do become ill, as well as discussing the amount of money you’d like to ring-fence for your care and giving them explicit access to your bank accounts or pension schemes.

 

Trusts

If you have children – either with your partner or from a previous relationship, setting up a trust is a great way to manage your finances, ensuring that your children have a protected source of income that can be used to fund their education or gifted as a lump sum once they reach adulthood – to help with placing a deposit on a house or contributing towards a car, for example.

However, the protection that a trust offers could also cause problems for your surviving partner, as they will not have any access to these funds. If, after you’re gone, they hit financial difficulties (especially if they were financially dependent on you), they could face serious problems, including homelessness, so it’s worth putting some careful consideration into how you manage your money.

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To conclude, estate planning offers a safety net for your surviving partner, giving you both peace of mind should the worst happen, as well as minimising any further headaches or heartaches your loved ones could face during what is already an emotionally challenging time.

If you would like to talk to one of our friendly, sympathetic team at Harding Evans about making a plan for your future, we have years of experience and promise to treat you with empathy and respect.

Visit our website at www.hardingevans.com, email hello@hevans.com or call 01633 244233 or 029 2267 6818


[1] The Guardian, ‘Cohabiting couples fastest growing family type, says ONS’, August 2019

 

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