Common law marriage and inheritance
In short: there’s no such concept [not in the sense that you understand it].
The common law wife.
The common law husband.
Common law marriage and inheritance – a phrase that occurs in the context of intestacy
Certain intestacy protections are [nevertheless they should not be relied upon] available to married folk.
There are none such protections to cohabitees.
Common Law Marriage
One hears: ‘there is no such thing as common law marriage’. This is not true.
There is in law, the doctrine of common law marriage.
But for our purpose it might as well not exist.
It might as well not exist because it is nothing to do with living together, it is nothing do with cohabitation, it is nothing to do with as official documents used to rather primly put it, ‘living together as if you were married’.
Because to our purpose common law marriage does not exists, we should treat common law marriage and inheritance as what it is, a chimera. We should regard it as a phantom. We should treat it as a ghost.
If you live with someone with someone ‘as if you were married’, [but not married to each other] you are not in a common law marriage. The moral of the story is not to rely on stuff you hear down the pub, or read on the internet [including this]. If you want advice, click here to arrange a consultation.
Common Law Marriage and Inheritance: Intestacy Rules
Dependence on the laws of intestacy is unwise. Reliance on the rules of intestacy is foolish. The rules of intestacy don’t recognise the contribution you’ve made to your joint household. You’ve invested blood, sweat, tears and cash into making your home – intestacy laws don’t care. Say what you will about the law being out of touch, say what you wish about the law being an ass, we deal with life and the laws as they are not as we’d wish them.
Without a will, if your partner died, you’d be entitled to nothing from his or her estate. Without a will, you’d get zero. In a roundabout way, if you’d find yourself at the rough end of the principle of common law marriage and inheritance.
If your partner died intestate, you’d experience the cruel manifestation of the law, by which your partner’s assets would automatically to his or her family.
At best you’d have to rely on their goodwill. You’d be asking them to give up their entitlement to your partner’s estate. Seriously? Do you want to rely on their charity? That’s one effect of the rules of intestacy. To my way of thinking, that’s positively wicked.
Your partner’s family hold on to the assets. They assert their right to your late partner’s estate. Then what? You’ll petition the courts, asking for a ‘fair share’ of your partner’s estate.
Really. Is that what you’d want: long, expensive, unpredictable court cases. And, there’s the ill such litigation will cause.
You and your partner can control how both your assets are distributed. Even in a ‘common law marriage’. You have the power. Don’t give that control away. Don’t give it to the state. Urge your partner not to leave you at the mercy of his family or worse, an arbitrator, mediator or judge.
Common Law Marriage and Inheritance: The Main Home
You might have bought the main family home together. Often, when a couple [irrespective of their marriage to each other] buy a house together, such property is held as joint tenants [the alternative form of ownership being tenants-in-common]. By this device of joint tenancy, the property automatically passes to the survivor of the couple irrespective of the provisions of any will, notwithstanding the rules of intestacy.
Common Law Marriage and Inheritance: Inheritance Tax
So, we’ve perhaps avoided stepping into a pile of dog poo on the matter of the family home – the survivor however, would likely be subject to inheritance tax on the gift of the family home from the deceased.
The object of this post was not to encourage you to get married or enter a civil partnership, as we have seen, the intestacy protections to married folk are paltry. On the contrary, the object of this post is: whatever your marital status, why place reliance on intestacy provisions?
Why not arrange your financial affairs the way your partner would wish you had? Because, as we’ve seen, the concept of common law marriage and inheritance doesn’t really protect you.