Legal implications from lockdown: Wills, marriage and cohabiting couples

What are the legal implications from lockdown?

Planning is key. Blake Morgan’s advisors frequently emphasise this to our clients.

Seldom does this apply more than to weddings or civil partnership ceremonies. Sadly, though, the unprecedented events of 2020 have led to many wedding plans having to be abandoned, postponed or drastically changed.

Let us imagine two clients – Paige and Finley – seeking advice. Bad news: their 2020 wedding was rescheduled for 2021 due to COVID-19. Good news: they managed to complete on the purchase of their first home, which is put in Paige’s name only due to Finley’s poor credit rating – although Finley paid for some extensive renovations before they moved in. Paige doesn’t have a will; Finley has a basic one from a few years ago when he had only just got together with Paige.

Their questions are:

1. Is 'being married' still important

In a word, yes.

It is clear that society has changed in recent decades, and long-term relationships, cohabitation and co-owning property outside of marriage or civil partnership are now commonplace. Despite this, the law still doesn’t cater for assets passing automatically on death between those not in a legalised union. Some might say the law hasn’t caught up with the times and needs an update. Others might argue that marriage or civil partnership shows such a joint commitment in a relationship that it is correct that the law only gives rights once this exists.

Bottom line, as Paige and Finley aren’t married, the law regards them in a way as strangers without succession rights between them, whilst if they were married, there would be legal provision for at least some of their assets passing to the survivor.

We would therefore advise that it is important for them to consider making Wills, to which they respond:

2. Do we really need a Will?

It’s highly recommended.

If someone dies without leaving a will, and they are not married or in a civil partnership, what they own passes to their deemed “closest” family (in a ‘DNA’ sense) by law. Paige and Finley may not want, say, a distant cousin to inherit instead of each other!

If like our pair here you are in a committed relationship – where sharing and pooling finances and assets is likely – then you should consider these legal implications. Paige would be sensible to consult a legal advisor about making her first will.

Finley, though, asks “what about my old homemade will?” Good question. Time to review it! Remember that Wills only take effect on death, but clearly they’re made to reflect your circumstances at the time of writing. Given Finley’s recent life changes, he’d do well to consider updating his will to cater for those.

It is very important to note that Wills are revoked – made legally void – by marriage or civil partnership. Why? The law regards marriage or civil partnership as such a significant change in personal circumstances that previous Wills are no longer relevant. Wills can be drafted to avoid this, but again, advice is recommended.

Finally, it is worth noting that a will must conform to certain legal formalities – it won’t be enough for Paige and Finley to write down or tell their close ones their wishes, as we have explored in a previous blog.

3. If we split up...what about our home?

Interesting question, and not pleasant to think about!

Nobody wants to go into a relationship anticipating its breakdown, but it can be beneficial to consider recording your intentions as to property ownership when acquiring it.

There is no doubt that the house is their ‘home’ – they bought it to live in together. However, legal ownership is recorded as all Paige’s. So, the starting legal presumption is that Paige owns the whole house. What of Finley’s contribution to the renovation to the house – surely that should count for something?

For divorcing couples, there is legislation to help establish property rights. There is, however, no specific legal mechanism to distribute property for non-married couples that split. If Paige and Finley didn’t make any express written declaration of how they wanted ownership to be apportioned, the reality is it could be left to a court to examine the relationship and infer intentions from behaviours or words. It would be for Finley to try and prove that there was a shared intention to be co-owners, and there is no guarantee that his contribution to renovations or even household bills would be enough to claim a share. These matters can get very complex, and the couple would certainly need detailed advice on their options if this situation did arise.

This is just scratching the surface of issues that might come about, and there is no one-size-fits-all, as circumstances differ. The simple answer is that Paige and Finley would be well served in speaking with a legal advisor to get a handle on their situation!

Blake Morgan’s Private Client team can advise on a wide range of issues for succession and tax planning, for individuals and families. Get in touch with us to discuss further how we may be able to help.