Couples in a long term, cohabitating relationship often incorrectly assume that after a certain amount of time has passed, they will automatically acquire legal rights in the other’s property and their wider estate. Couples who seek to rely on a long period of cohabitation to reinforce their rights are often disappointed to learn that this is not generally the case. This assumption of “common-law marriage” can have particularly severe consequences in the context of property ownership as it is usually not a question of how long you have been living in the property together, but rather how the ownership of the property is held between you.
Joints Tenants
If you and your partner have purchased a home together, you may have decided to own the property as Joint Tenants. This means that when one of you dies, their share of the Property automatically passes to the other. This can be particularly important when one partner’s death is sudden and unexpected.
Tenants in Common
However, if you own the property as Tenants in Common, your share does not automatically pass to your surviving partner on your death. Instead it will pass in accordance with your Will (if you have made one) or in accordance with the statutory rules of intestacy if you do not have a valid Will in place at the time of your death. Alternatively, if your Will is not up to date following a change of circumstances (for example, where you have separated from your spouse but have not yet obtained a divorce) this could mean that your share of the property and any other assets may not pass in accordance with your current wishes. .
If you own a property as Tenants in Common but you have not made a Will, your share will pass by the rules of intestacy, which do not automatically recognise cohabitees. Your surviving partner may be forced to make a legal claim against your estate (including the home you shared together) to claim a share of your estate, resulting in a lot of additional anxiety, stress and cost at an already difficult time.
This can be avoided by simply making a Will or updating your existing Will to reflect your personal circumstances and to ensure that your wishes as to whom you would like to inherit your estate are followed.
If you would like help or guidance on making a Will or require further advice on any of the issues raised in this article, please contact Emma directly or another member of our expert Private Client team on privateclient@bishopandsewell.co.uk or call us on 020 7631 4141.
