Many “Common Law Spouse”- partners living in Cloud Cuckoo Land
Over two-thirds of people living together are literally living in a dream that all will be well if things go wrong – either partner dies or loses the ability to make decisions – maybe accident, coma, drugs, mental issues, dementia, stroke.
Bearing in mind that one or both of those things will happen to every single one of us, this is bad news for cohabitees and often for their children too.
So on top of devasting news comes more devastating news:
Death of Partner to whom you are not married or civil registered:
The survivor has no automatic right to inherit the deceased’s assets. They will be distributed according to the Rules of Intestacy, which do not recognise cohabitees, only legal relatives – and so called “common law” partners are NOT legal relatives. Indeed, they would have to make a claim under the Inheritance Act (1975) to get a share of them – less substantial legal fees which may be more than those assets.
Unable to make decisions: disability of partner
Typically, a serious illness or accident can make anyone incapable of decision-making, but some will take away this ability permanently. Important decisions during this time can only be taken by the Court of Protection unless sound legal planning is in place (which is why we’re here.)
The minute your common law spouse or partner for life loses mental capacity, and it doesn’t matter if you are married, common law “married” or civil registered. Unless you can prove either that they can make those decisions, or that you have the necessary authority to act for them, which you almost certainly won’t without Lasting Powers of Attorney or an old Enduring Power of Attorney. Then the following things may and probably will happen outside of your control:
- Joint accounts may be frozen (this can happen even if the bank THINKS they have lost the ability to make decisions – unless you can prove that they have.*
- Any decisions about their welfare (including whether they shoulod be in a nursing home or move to the property you have just exchanged contracts on) or finances will not be made by you. Most likely they will be made initially by Social Services advising the Court of Protection (at your partners expense). Family members will likely have more influence than you.
Research* shows:
- 32% mistakenly believe their estate would automatically pass to their common law partner
- 17% admitted they were unsure what would happen
- 11% said they had never even thought about the issue
- 8% thought their estate would go to close friends
The Rules of Intestacy dictate how a person’s estate is distributed when they die without a will.
I am a common law spouse. What should I do about it?
Getting married or civil registered does slightly improve the situation, in that you will be entitled to some part of the deceased’s estate – but it doesn’t make any difference to who is in charge of mental capacity is lost – it is still the Court of Protection.
The Prescription.
- Both of you make Wills to ensure your assets go where you wish.
- Both of you make Finance Lasting Powers of Attorney to ensure that financial matters can be dealt with if your partners’ ability to make decisions should be compromised. If your partner is not great with money, we can build in precautions.
- Both of you make the Health and Welfare Lasting Powers of Attorney, so you have the ability to move, to make heath decisions for your partner when they are unable to for mental capacity reasons.
If you would like to start taking precautions, call Steve Pett on 01323 766 766 or use the enquiry form.
Case Study
* I was approached by a lady whose husband had been put into a Nursing Home. Not because he lack the ability to make decisions, but because he had bad knees and his wife had to keep calling the ambulance out to lift him up. He was perfectly mentally competent, but because it was a “Nursing” home, the bank assumed the worst and froze their only account – a joint one. They offered to interview him in the branch if he could be brought in by ambulance – despite the fact that some of their staff parked withing 100 yards of thr nutding home.
They refused to accept a perfectly legal General Power of Attorney.
For 3 months she had no access to money for food, or anything else as the only money going into the account was her husbands pension, which she had no right to divert.
Finally we managed to get both types of Lasting Power of Attorney in place, something which would currently take FAR longer now.
Don’t let this happen to you or yours!
*Inspired by research by Will Aid