family wills probate

Is this the most dangerous legal myth?

There are lots of legal myths around which crop up from time to time, here are some which I’ve come across :

  • All your debts are written off when you die. Sadly they aren’t. Your assets have to be used to pay off any debts before anyone can inherit your estate. If there aren’t enough assets then your debts aren’t inherited, but they are not automatically written off
  • It’s illegal to place a stamp with an image of the monarch upside down on a letter . Well…it isn’t actually illegal itself, although could be if it were done with the intention of deposing the monarch
  • Leaving the interior light on while you’re driving a car is illegal. It isn’t specifically against the Highway Code, but it can cause problems for drivers behind you and if a Policeman asks you to turn it off, you absolutely should!
  • Couples who have lived together for a long time but aren’t married are considered to be common law spouses and have rights in each other’s estates on death….

The last one is a myth I hear again and again from clients, but it simply is not true. A couple who live together but are not married, have no rights in each other’s estates on death if they do not have Wills to protect their assets and their partners.

It is possible for a cohabitee to make a claim for provision in their partner’s estate, but this is not a right. A legal action has to be started (and is often argued), resulting in delay until everything is settled, much stress for the person making the claim because there will be no guarantee that they will be successful or what the outcome will be, and the financial burden of legal proceedings which could run into tens of thousands of pounds.

Let’s imagine a couple (Anna and Bob) who have lived together for 20 years but did not marry. Their home is owned by Anna (she inherited it from her mother) and Anna has a son, Charlie, from an earlier marriage. Anna does not make a Will, believing that Bob (as her common law spouse) will inherit the house from her estate.

Unfortunately this is not the case. On Anna’s death, if there is no Will, how her estate is divided is set out by a set of legal rules called the Intestacy Rules. These benefit only spouses and blood relatives, so in Anna’s case the house is inherited by Charlie.  Charlie and Bob may have a difficult relationship in which case Charlie will want to keep the house himself and he tells Bob to move out.  As a cohabitee of 20 years, Bob may have a claim to keep living there under the Inheritance (Provision for Family and Dependents) Act 1975, but he will have to start legal proceedings against Charlie, if Charlie will not come to an agreement with him.

Anna could have made a reasonably simple Will which would have prevented this – she could have decided to leave the house outright to Bob. Or she could have allowed him to live there rent free for the rest of his life, with the property passing on to Charlie after Bob’s death.  In both cases, Bob does not have to take any legal action to keep living in the house which is his home.

We have also seen situations where Charlie is Anna and Bob’s child (so no bad feeling between them), but is under 18 and cannot legally agree to any changes in how the estate is distributed. If Bob takes legal action to be included in the estate, he is taking action against his own child. Charlie must have separate legal representation because he and Bob have different interests.  You can see how easily the legal costs of dealing with this can escalate, even if there is no actual conflict between the parties. These legal costs will easily outweigh the cost of making a Will.

This can all get very messy very quickly, and in another variation on the theme, if Anna’s closest relatives are not children, but her parents, or even uncles and aunts or more distant relatives, the complications can be compounded.

This is a situation which could arise for couples of any age and the myth of the ‘common law spouse’ really needs to be laid to rest.

So there is some simple advice for anyone in this position – make sure you have a Will drawn up or review any old Will you might have.    Make sure that you have taken legal advice about what would happen on your death and that you understand how your estate would be dealt with. Then take steps to make provision to protect and look after those you love.

For more information please contact Kathryn Caple on 01283 526200 or email

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