Cohabitees, “Common Law” Marriages and Inheritance

Unfortunately many people assume that if someone dies without a Will their “common law wife or husband” will be entitled to their estate. The principle of a common law marriage is often misunderstood. In fact there is no such thing. In relation to the Intestacy rules, you are either unmarried or you are married. If you are married you may be entitled to benefit from your spouses estate under the intestacy provisions. If you are unmarried then you will not be entitled under those provisions.

So what can you do?

Prevention is better than a cure. Everyone should make a Will and regularly review it. If your circumstances change you may need to update your Will, or change it entirely. At Linder Myers our Trust and Estate team can discuss these options with you.

If your partner did not have a Will, then you may be able to make a claim against the estate. Most people who are in any type of relationship have had some financial dependency upon each other. Whether you are entirely reliant upon them, or whether you simply relied upon them in conjunction with your own funds in order to lead your lives together, you can potentially make a claim.

You will need to show that you were living with your deceased partner for two years immediately prior to the death, in the same household and were acting as “husband, wife or civil partner”.

You should be aware that there is a very strict time limit for bringing any claim. You must make the application within six months of the grant of probate being granted.

Once you have decided that you wish to make a claim, you will need to find out who the Personal Representatives or Executors are. This may then lead to a number of problems, as family members who are entitled under the intestacy provisions may be resistant to your claim.

It is therefore vital that you contact solicitors as soon as possible to obtain initial advice. It is always preferable in these types of situations to resolve any conflicts through Alternative Dispute Resolution without the need for Court proceedings. However, unfortunately it is sometimes the case that proceedings are required.