It’s a natural assumption that you can leave your possessions and your property to whomever you chose after your death.
In addition, a married spouse would usually inherit some or all of your estate if you were to die without a will (intestate) – even if you are separated.
Confusion often arises, however, when a couple live together outside of marriage (co-habit) and do not understand their legal status. Many assume that as a ‘common-law wife or husband’ they have similar rights to married couples.
When discussing wills with my clients, I often have to clarify the position of the wider family, whether married, co-habiting or a dependant, as each of these can have an impact on your estate. If you write your will without fully understanding your position, your possessions may not pass on to the people you intended.
What’s the difference between Common Law and Statutory Law?
There are two areas of law that we need to consider. A simple overview of each is that:
Statutory Law is the written law, as defined by a legislative body such as Parliament.
Common Law is that which has been created via custom and judicial precedent; that is, through decisions made by the court.
It is Common Law that gives you the right to leave your estate to whomever you wish. However, in some instances your expressed wishes may be overridden by Statutory Law.
Clarifying your position as ‘common-law spouse’
I am often asked about the legal position of ‘common-law’ couples. It’s a term that is in regular use, at least by the general public. This should not, however, be confused with the Common Law, as mentioned above.
The position of common-law wife or husband is not a legally recognised one. It has purely become a description, or a slang term, for a couple who co-habit. Unfortunately, co-habiting does not automatically infer the person you live with (your partner) the same rights as that of a married spouse.
The case for financial provision of your dependants
As they are not legally recognised, your partner would not inherit anything from your estate unless you expressly state this in your will.
However, if they are dependent upon you financially and you have not left them sufficient support, they may bring a claim for financial provision
For example, you may choose to leave your estate to your children. If, however, you were supporting the parent of that child financially before your death, they may be able to make a claim for continued financial support from your estate.
This is where the Common Law – in this case your right to leave your estate to whomever you wish – may be overridden by Statutory Law. Statutory Law says that an adult or child, even if not related to you by blood or marriage, may have the right to make a claim if you were supporting them financially (The Inheritance (Provision for Family and Dependants) Act 1975).
When planning your will you should consider who is dependent on you. If in doubt, I recommend that you obtain legal advice to be sure that you have adequately provided for your dependants, and don’t leave your estate open to challenge.
Can I leave my share of our home to my children?
A similar level of confusion may arise around your property and who may inherit it.
It’s natural to assume that you can leave your property to whomever you choose. For instance, you might want to ensure your share of your home is left to your own children.
However, this may not be as simple as you think. If you co-own your property, statutory property laws may override the wishes written in your will. It depends on the status of your ownership.
Generally a couple will own a home as Joint Tenants. Joint Tenancy is where you own your home with someone else and you both have equal rights to the whole property. When one of you dies, the other will automatically inherit the whole property and you cannot leave any of it to anyone else in your will.
I find it helps clients to clarify their position as a co-owner. If necessary there are options, including severing your Joint Tenancy, that will allow you to identify your share in the property and pass it to the person you choose.
Remember that there is a lot of online legal advice, but it is important that it has been written by a qualified and practising solicitor and is up to date. A well-maintained online resource, such as ‘Be My Own Lawyer’, provides the freedom and information to write your own will with the reassurance of expert back up if you need it.
Common Law may give you the right to name your heir in your will, but don’t forget, it can be overridden by Statutory Law. If in doubt, always seek legal advice as to your position.
For more information contact Barker Evans Law