Posted by Mandy Casavant, Senior Associate
Deathbed weddings – why are they becoming more common for cohabiting couples?
There has been a recent increase in cohabiting couples marrying at the last minute. So-called ‘deathbed weddings’ are to ensure that the surviving partner receives financial support when their spouse dies. The problem is that cohabiting couples are not treated the same as couples who are married or in a Civil Partnership, and could therefore suffer some shocking consequences as a result.
Why are cohabiting couples at risk?
Cohabiting couples are the fastest-growing family type in the UK. There are 3.3 million families of this type as of 2017, and this is only set to increase. Despite this trend, the law has not yet evolved to provide the same rights and protections for cohabiting couples to those who are married/in a Civil Partnership.
Between a third and two thirds of cohabiting couples believe that there are “common law spouse” protections covering separation or death, similar to the rights and protections a married couple would have.
However, “common law marriage” does not exist and as a result some couples may be unprepared for events such as death or separation.
What happens when a cohabiting person dies?
Only 26% of people in cohabiting couples have a Will, compared to 52% of married people. If someone in a cohabiting couple dies without making a Will, the law does not automatically give any of their assets to the other person.
Some types of jointly held assets can pass automatically to the surviving partner and there is legislation which may allow cohabitees to claim on their partner’s estate. However, when someone has just lost their partner, finding out that they will not inherit what they expected and that they might have to make a claim against the estate would be devastating. The simple solution is to ensure that there is a valid will.
Less than a third of cohabiting couples have life insurance. By taking out life insurance and making sure that death-in-service benefits and pensions are set up in favour of a partner can ensure that they are looked after.
How is separation dealt with for cohabiting couples?
The law generally treats a cohabiting couple who are separating as two unrelated individuals, which means that the contributions that they have each made to their relationship is not taken into account as much as it is for married couples. This can lead to unfair outcomes.
Also, the law does not give the courts the same powers to share a property between a separating cohabiting couple as it does for a separating married or Civil Partnership couple.
A cohabitation agreement and/or a declaration of trust can help to clearly set out how assets are to be dealt with.
Other areas where there are differences – state benefits and tax advantages
Cohabiting couples do not benefit from “bereavement payments” or the “marriage allowance”, as married and Civil Partnership couples do. A recent case has signalled a shift in this, but the judges in the case explained that it is for Parliament to decide on a change to the law.
For Inheritance Tax, married and Civil Partnership couples can pass wealth between each other exempt from inheritance tax, whereas cohabiting couples cannot. A cohabiting couple cannot make use of both of their basic inheritance tax allowances – on the second of their deaths, like married and Civil Partnership couples can. This can potentially lead to a difference of £325,000 more being taxed at 40% for cohabiting couples.
There are more differences in addition to the ones summarised above which cannot be covered in this article.
Is change coming?
In 2007 the Law Commission recommended that the law should be changed. Attempts to change the law have been unsuccessful so far. The latest attempt is the Cohabitation Rights Bill, which is currently being considered.
What can cohabiting couples do to protect themselves?
Cohabiting couples can make Wills, cohabitation agreements, declarations of trust, arrange life insurance, and ensure that death-in-service benefits and pensions are set up to benefit each other.
Lasting Powers of Attorney are also useful as they enable someone to choose in advance who will look after their property, finances, and medical/personal care if they lose mental capacity.
For more information, please contact our Private Client team on
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