What if my partner hasn’t left a Will?
The notion of ‘common law marriage’ is a myth in England and Wales. Although in 2020 nearly one in five couples that lived together were cohabitating rather than married or in a civil partnership, there is no legal status afforded to cohabitees.
The current intestacy rules are set out in Section 46 of the Administration of Estates Act 1925 and are as follows:
- Where a person dies with a surviving spouse and no children, the spouse is entitled to 100% of the residuary estate.
- Where a person dies with a surviving spouse and children, the spouse is entitled to the personal chattels (e.g. furniture, paintings, jewellery etc) and a legacy of up to £270,000.00. The remainder of their estate, if any, is then divided 50% to the spouse and 50% to the children.
- Where there is no surviving spouse and there are children, the children receive 100% of the residuary estate.
- The rules further provide for how the estate is distributed to more distant relatives if no spouse or children survive the deceased.
What this means is that if your partner dies without writing a Will, you will not be entitled to any portion of their estate. Their family members who inherit may choose to give you some of their inheritance, however they are not required to do so.
However, all is not entirely lost. Firstly you may own some assets jointly with your partner.. These assets will not pass under the rules of intestacy but to you, under the rule of survivorship.
Secondly certain categories of people are entitled to make an ‘Inheritance Act’ claim against an estate if they have not been provided for reasonably for under a Will or Intestacy. The law surrounding this is set out in the Inheritance Act (Provisions for Family and Dependants) Act 1975. This Act permits claims to be made by a cohabitee, being someone who lived in the same household as the deceased as if they were a married couple or civil partners for at least two years leading up to the date of death, for ‘reasonable financial provision for maintenance’. The merits of the claim will depend on many factors, which are listed in the legislation, and include the specific circumstance of each individual case.
If you are interested in making an Inheritance Act claim, our blog ‘What to consider when making an Inheritance Act Claim’ will provide you with useful guidance on how to do so.
Inheritance tax provisions favour spouses/ civil partners rather than cohabitees. Any gift to a spouse /civil partner is exempt from inheritance tax so for example when a person leaves their entire estate to their spouse/civil partner no inheritance tax is payable. If you are unmarried or not in a civil partnership and leave your estate to your partner, they will receive their share less any inheritance tax payable.
Each person has a ‘Nil Rate Band’ which is the part of your estate which passes entirely free of inheritance tax. At present this is £325,000. What this means is that inheritance tax is only chargeable on the portion of a person’s estate that exceeds this sum.
- For example: If a person dies with an estate valued at £500,000 and they have not used any of their Nil Rate Band through lifetime gifting, inheritance tax is chargeable on £175,000 of it.
In addition, everyone is entitled to a ‘Residential Nil Rate Band’ of £175,000 which is available specifically when a person leaves a property that at some point has been their main home, to a ‘direct lineal descendant’, e.g., a child or grandchild. This Band is applicable up a maximum of £175,000 subject to the value of the equity in your property.
- For example: If your home is worth £150,000 when you pass away and you leave it to your children, you will only use £150,000 of your Residential Nil Rate Band and the remaining £25,000 cannot be applied against your other assets.
If you are married or in a civil partnership, any part of your Nil Rate Band and Residential Nil Rate Band that is unused on the first of you to die, can be transferred to the estate of the surviving spouse/civil partner, meaning up to £1,000,000 can pass inheritance tax free between the two of your estates.
- For example: A leaves his estate including a house valued at £300,000 to his wife, B. No inheritance tax will be payable due to the spouse exemption. When B dies, she leaves her estate, valued at £900,000, including the house which she has lived in as her home, to her two children.
|B’s Nil Rate Band
|B’s Residential Nil Rate Band
|A’s transferable Nil Rate Band
|A’s transferable Residential Nil rate Band
For partners who are not married or in a civil partnership, it is not possible to transfer the Nil Rate Band or Residential Nil Rate Band and any unused portion is lost. In some circumstances, depending on value of the assets, and how they are owned, this may also mean that Inheritance Tax is due on the first death and the surviving partner may even have to sell assets including their home or borrow to meet the tax liability.
What is the Solution?
The simplest solution to ensure that you and your partner provide for each other is for you and your partner to both write Wills. This will provide you with peace of mind knowing that when either of you pass away, the other will be adequately provided for and entitled to receive some or all of the other’s estate.
A valid Will ensures your assets will go to the person you choose and not simply the person the law dictates is entitled.
Whilst partners do not benefit from the inheritance tax provisions set out above, we can advise you on how best to distribute your assets in your Will, in the most tax efficient way.
If you would like to discuss making a Will or Inheritance Tax planning, please contact a member of our Private Client Department on 020 7228 0017 to arrange an appointment with one of our solicitors.