Life, Death and the Changing Shape of British Families

The only way to ensure that your wishes are adhered to - whether you're married or not - is by having a will. It might not surprise anyone that I firmly recommend them but the countless difficulties experienced in cases on which I have advised where no will was present, make all too clear how the time spent putting in place a clear plan for your assets, is very well spent providing peace of mind for you and your family.

There are few circumstances in which a relatively simple document can make such a significant difference as in death.

However, whilst the presence of a Will can be a source of great comfort, making clear someone's intention to take care of those left behind, its absence can add terrible uncertainty to the very natural feelings of grief and distress.

Surviving spouses are at least entitled to something. Unmarried partners have no automatic rights of inheritance whatsoever.

The persistent myth of the 'common-law spouse' leads many people to assume that the entire estate of someone who might have been married when they died will pass directly to their surviving spouse. Sadly, that is not the case.

To receive anything at all, they have to go through the courts, a process which can add headache to heartache. If they succeed in arguing their case, they will still not come away with an equivalent entitlement to someone in their position who had been wed.

In an effort to resolve that desperate situation, the Law Commission this week announced the results of two years of consultation with lawyers and the public.

It recommended that cohabitees be allowed to inherit all of their deceased partner's estate without having to go to court if they had lived with each other for at least five years. The Commission also suggested that, where a cohabiting couple had children, that period should be reduced to two years.

Such proposals illustrate an appreciation of the changing nature of family life in modern Britain. With the numbers of couples choosing to tie the knot continuing to decline, more are simply living and raising families together.

The Commission's recommendations provide inheritance rights for cohabitees for the first time and offer the prospect of a simpler and less painful process to justify one's entitlement.

Another important consideration is the need to address the staggering numbers of people who die each year - more than a third of a million according to recent estimates - without making a will.

Given both those factors, it's perhaps not surprising that the Commission's suggestions have been welcomed, by some at least.

Making recommendations, though, is not enough to ensure change for the growing ranks of unmarried couples in Britain. In 2007, the Commission - which reviews and makes suggestions about laws in England and Wales - urged ministers to give cohabitees who split up some of the same rights afforded to married couples.

Successive governments have chosen not to act on that advice, worried about being seen as undermining the institution of marriage. There is no guarantee that this latest raft of suggestions will enjoy a different outcome.

There is another issue which has so far been largely overlooked in the reaction to what the Law Commission has put forward. Whilst the reforms it has suggested will be welcomed by some, they won't by all.

Instead of defusing tensions and difficulties, they may actually inflame them. Some people may live together but not marry because they don't necessarily want each other to have an automatic right to inherit any of their assets. In my experience and that of my colleagues at Pannone, it is a common position among those who have been married - and divorced - before.

In that sense, what the Law Commission has recommended amounts to an erosion of testamentary freedom, the ability for people to decide what happens to their property - either with or without a will.

Such points are more than likely to be thrashed out should ministers decide to act on what the Commission has had to say and introduce finely-detailed legislation.

The only way to ensure that your wishes are adhered to - whether you're married or not - is by having a will. It might not surprise anyone that I firmly recommend them but the countless difficulties experienced in cases on which I have advised where no will was present, make all too clear how the time spent putting in place a clear plan for your assets, is very well spent providing peace of mind for you and your family.

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