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Wills and the Rights of a Surviving Partner

By: Emma Jones - Updated: 4 Apr 2016 | comments*Discuss
Wills And The Rights Of A Surviving Partner

Obviously nobody wants to consider the possibility of themselves or their partner dying but in the unlikely event of it happening, it is best to be prepared. If you are in a cohabiting relationship and are living as ‘common law’ husband and wife then you may think that your rights are covered, but they’re not. In legal terms there is no such things as common law marriage and the surviving partner has no claim to the estate, however long you may have been living together.

Your Rights

You may know that your partner wanted their estate to pass on to you and so may your friends and family but unless it is stated in a legal document then it counts for nothing. If your partner passes away then their assets are automatically left to their next of kin. Even if you don’t have any children this applies and could be a brother, sister or even a cousin or nephew. As callous as it may sound, unless you are married then legally, you don’t exist in the proceedings.

Making a Will

If you want to make sure that your partner is first in line to receive your home, investments or any other assets you may have when you dies, then you need to make a will. The will is a legally binding contract and sets out exactly who gets what and how much in the event of your death. It needs to be signed, dated and have witnesses. There are kits you can buy or download but for peace of mind, and because it is especially important for cohabiting couples, it is a good idea to get a lawyer to oversee it.

What Should it Cover

Your will needs to cover every asset that you own and set out clearly who will receive it. This includes property, investments, antiques and household items, cars and pensions. If you have a work related pension then your partner will not automatically receive it if you die as they are not considered as a spouse. Consult your accountant and lawyer to make sure you have mentioned everything that you own and are unambiguous about your intentions.

Inheritance Tax

This is a sticky situation. If you are not married to your partner and inherit property from them then you will be hit for 40% assets above the £263,000 threshold. If you were married then you would not be liable for inheritance tax on your spouse’s estate. There are ways to avoid paying inheritance tax but you need to plan it well before one of you passes away and seek legal advice to navigate the complicated laws surrounding it.

Making a will is never a fun thing to consider but it is vital if you want to know that your partner will be secure and have rights to your estate, whatever happens. There is not much room for negotiation in the law and the knowledge that your partner would have wanted you to have everything will not count for anything unless there is a will stating so. If there are children and extended members of the family it can be even more tricky and that is why clarifying everything in a legally binding document is essential for your peace of mind and your future.

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My fiancée (Mrs Irene Todd) recently died, Easter Sunday 27th March 2016, she left a will leaving an equal share to each of her 4 children, which I fully agree with, we were a couple for 12.5 years and planned to get married early June 2016 Although we were not legally registered in a civil partnership everyone we knew accepted us as a couple. Although I had my own house, which was about to be sold, I did live with at her house 6 days a week and 1 day was spent at my house when I went out with my friends to the pub and stayed at my house. My question is am I entitled to and pension payments (state pension) since she would have been 60 years of age on 1st May 2016 and had paid all or most of her NI contributions. Or does any state pension payments, (for up to 1 year plus the £2000 towards the funeral costs), die when my fiancée died. I'm also being told that her ex-husband, not mentioned in her will, the father of her 4 children, may be entitled to these payments which Irene would not have wanted since she has been divorced since 2006. The other point is that we had a property together in Spain which we purchase in February 2007 (50-50) and unfortunately we never made a Spanish will which is causing all sorts of problems now but hopefully will get sorted soon, although it is complicated under Spanish law. Any advice, particularly regarding any pension payments and the £2000 towards the funeral costs would be most helpful. Regards, Tony Tudor.
Tony T - 4-Apr-16 @ 11:07 AM
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