Society has changed significantly in the last 20 years and there has been an increasing tolerance to family arrangements which were once regarded as unusual. I want to look at cohabitation by which I mean two people living together as if they were married to each other. This arrangement has increased massively, in 1996 there were 1.5 million cohabiting couples and in 2017 this figure has risen to 3.3 million.
I think that it has become largely acceptable for people to live together outside marriage and for children to be born to parents who live together but who aren’t married. In fact approximately half of children are born into unmarried families and any social stigma is either non existent or almost non existent.
I see many clients who fall into the definition of cohabiting couples to make wills. They fall largely into the group of young parents who want to make provision for their children and older people for whom the cohabitation follows divorce or widowhood and where there are children from other relationships whose position needs to be considered.
It is extremely important that cohabiting couples make their wishes clear and legal in the form of a properly drawn will.
The couple need to appoint guardians who will have parental responsibility for the children if the parents die before the children are 18 and also trustees who will have legal responsibility for managing the children’s inheritance before they come of age. These appointments are crucial.
The couple need to make provision for each other in a controlled manner which ensures that the estate goes to the children at the end of the day
Joe (47) is divorced and lives with Kay (52) who is widowed. Joe has three adult children and Kay has an adult child. In their wills, Joe and Kay provide for each other using trusts and after they have both died their respective estates pass to their respective children.
Older people, committed yet unmarried
I see more people over 65 who are living together and have done so over many years (20+) and regard it as a permanent arrangement. The reasons for not marrying are varied and include opposition from adult children. It must be noted that upon death, the partner does not have legal recognition because they are not a widow or widower simply because they were never married. There was no legal and public commitment, there was no assumption of the bundle of rights and responsibilities which marriage brings.
In practice this can mean that the partner can’t register the death, arrange the funeral, inherit a pension or inherit anything at all in the absence of a will.
Pensions are a major asset for many people and the status of being a lawful spouse can be crucial. This includes a lawful civil partner, but note that civil partnership is an arrangement available only to same sex couples.
Steve is a bachelor aged 69 and he has lived with Sally aged 75 for 25 years. Steve has Type 2 diabetes and is feeling his age. Sally has a stroke and dies. The house is in her name and she received a good pension. She had not made a will and her son (50) stepped in to arrange the funeral and obtained Letters of Administration and Steve received a solicitor’s letter asking him to leave the house so that it could be sold. The stress on Steve was unbearable and his health deteriorated rapidly and he lost capacity.
Sally could have made a will to enable Steve to stay in the house and after sale the proceeds could either be paid to her son at that stage or held in trust for Steve and paid to the son after Steve’s death. She could have made financial provision for Steve in a trust so that her son still inherits at the end of the day.
I talk openly to clients about the legal and financial benefits of marriage following death, especially regarding pensions and next of kin status.
Remember that a marriage revokes a will unless a special clause is included in the will. It’s quite funny because when I ask a couple if there is any intention to marry, quite often one will say yes and the other no and that’s when my marriage-broking skills come in handy and I order my hat!
Naomi Pinder LLB(HONS)
Head of Private Client