It’s complicated – changes to marital status and making a will

There have been a number of changes in regard to marriage law since 2004, with the most recent being the introduction of opposite-sex civil partnerships in 2019.  These changes have provided clarity over legal rights and financial security when one member of the couple dies.

However, couples who choose not to formalise their relationship can face a great deal of uncertainty when one of them dies if the survivor is not provided for in a will.

‘It is important for cohabiting couples to understand that they do not share the same legal rights and financial security as those who have formed a legally recognised union’ says Jessica Pye, an Associate in the Wills, Probate and Trusts team with MacDonald Oates LLP Solicitors in Midhurst.

Different rights under intestacy rules

When a person who is married or in a civil partnership dies without a valid will, (called intestate) the distribution of assets will follow rules determined by intestacy law.

A spouse or civil partner will automatically be entitled to part of the estate, although it should be noted that the full extent of entitlement depends upon whether there are surviving children, as well as the way in which assets are held. Although they are not guaranteed to inherit the whole estate, a spouse or civil partner can at least rest assured that they will be provided for to some extent.

Cohabitees, however, do not receive the same automatic entitlement if there is no valid will, regardless of how long the couple has lived together. As such, a cohabitee may no longer be in a position to remain in the home they shared with their partner, or it might be necessary for them to make a time-consuming and expensive claim against the estate.

Implications of a change in marital status on making a will

When making a will, there are a number of considerations which will depend upon marital status and any planned changes to this status:

• If you are a cohabiting couple, it is unlikely that intestacy provisions would reflect your wishes, you need to think carefully about making your wills.
• If you are planning to get married or enter a civil partnership, the law dictates that any marriage or civil partnership formed after a will is executed has the effect of revoking the will in its entirety. If you currently cohabit and intend to marry or become civil partners, you must ensure that your wills set out this intention in a legally binding way.
• If you are in the process of getting a divorce or dissolution, a formal separation can take time.  If you do not want your spouse or civil partner to inherit if you die before the proceedings have been completed, you should consider updating your will before receiving your final order.
• Once your divorce or dissolution has been finalised, any reference to your ex-spouse or ex-civil partner within your will is read as though that person died on the date your divorce or dissolution was finalised. It is important to ensure that your will is updated following divorce or dissolution to make sure that it continues to reflect your wishes.
• Cutting out a dependant ex-spouse or ex-civil partner may not be appropriate in all circumstances, for example if you have been ordered to continue making regular payments to them. This makes updating your will post-divorce or post-dissolution even more vital.
• For a second or third marriage, you should consider and seek advice on any claim a former spouse or civil partner may have over your estate to ensure that your current partner is protected, especially if you have children from an earlier relationship.
• A deathbed union or a deathbed will should never be a first choice but can be a useful option for couples who have not planned ahead. Even so, careful consideration must be given to ensuring that wishes are not made in a panic, that you are not subject to undue influence, and you should seek expert advice to help guide you through the process.

Forgetting to update your will in light of a change of circumstances could lead to a claim being made against your estate. Your estate could also become subject to a claim, for example from a disappointed cohabitee, if you have failed to make a will and simply left the distribution down to the rules of intestacy.

How we can help

For all couples, it is vital that you understand your legal rights and that you ensure your wishes are properly protected and upheld. Our solicitors can explain how your estate will be dealt with in view of your circumstances and help you plan to achieve your wishes.

For further information, please contact Jessica Pye, an Associate in the Wills, Probate and Trusts team on 01730 819190 or email. 

If you need advice about splitting up, or cohabiting with someone, please contact Tim Melville-Walker of our Family team on 01730 816711 or email .

MacDonald Oates has offices in Petersfield in Hampshire and Midhurst in West Sussex. However, we also conduct meetings by phone and video conferencing.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.