Busting the myth on ‘common law marriage’: Why is it so important that I write a Will?

21 April 2021

The recent ITV comedy-drama Finding Alice told the story of a woman called Alice, who had recently lost her partner, Harry, in a tragic accident in their home. Through the twists in the story and brief moments of humour, as a viewer, we discovered about how Alice struggled to deal with Harry’s affairs after his death. This even included her right to stay in his property, and her right to access his bank accounts.

The reason she was prohibited to make these decisions was due to the fact that he did not leave a Will and furthermore, they were not married. This article is not here to suggest the benefits of getting married, it is here to stress the importance of writing a Will, whatever your marital status.

The myth of ‘common law marriage’:

Contrary to public opinion and news tabloid articles, the concept of common law marriage is one that does not exist. Even if you have children together or appear to live as a married couple without the formality, under the UK Law of intestacy your partner would not be entitled to anything upon your death.

It is important to remember that anything owned jointly, however, such as a joint bank account or a property owned as joint tenants, will still pass to the surviving partner even without a Will. For the rest of the deceased’s assets, they follow the strict order of intestacy as to who is entitled. This is as follows:

  1. Spouse or civil partner, but if none;
  2. Any children of the deceased, but if none;
  3. Parents but if none;
  4. Brothers and Sisters of whole blood…

…And the list goes on. If there is no one applicable for the highest category, it then moves to the next category and so on until a relative is found who is entitled to the estate. The laws of intestacy can become complex, but even as the list goes on, unmarried partners are not catered for at any stage.

By writing a Will, this can be avoided. Writing a Will gives you the opportunity to leave everything to your partner, meaning the rules of intestacy are irrelevant.

But what if you are married, is it still important to write a will?

Absolutely. The order of intestacy above would still be followed and providing you did not have children, your estate would go entirely to your surviving spouse. However, if you leave a surviving spouse and children, then this may mean your estate is not divided how you would like it to be.

The first £270,000 of your estate upon death would pass to your surviving spouse. Any amount remaining in your estate after this amount would be divided equally into two halves. The first half would be for the surviving spouse, and the other half would be for surviving issue, such as your children and potentially grandchildren. It is important to mention that your surviving spouse is additionally entitled to all of your personal affects, no matter what the value of these are. This may not be in line with your wishes, and it could have inheritance tax consequences for larger estates.

If you write a Will leaving everything to your surviving spouse, this resolves the above, and means that your estate passes as a whole.

What other reasons are there for writing a Will?

Perhaps the most important reason for writing a Will is to ensure that your estate is distributed exactly how you would like it to be. This can be to family members, friends or charities, but the benefit is that it is completely of your choosing.

Writing a Will also makes your wishes clear to your surviving family members. It saves confusion and debate at what is a difficult time.

What makes a Will valid?

Even after your Will has been signed, it is important that it has been executed correctly, in order for it to be valid. If it is not valid, the intestacy rules come into play.

For a will to be valid, it must be in writing and signed by yourself in the presence of two witnesses. Both the testator and the witnesses must be aged 18 or over, and the witnesses and their spouses cannot be named as an executor or beneficiary within the Will. You must also sign it voluntarily, and be of a sound mind.

Our expert Wills, Probates & Estate Planning Team at Redkite can assist you in the drafting of your Will, help with succession planning, trusts, lasting powers of attorney and more. To find out more about our services, and to speak to one of our team, click here

This article was writte for Redkite Solicitors by one of our Wills & Probate Team Members, Bethany Fielding.


The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.