What Cohabitees Should Consider When Making a Will

Data from the Office for National Statistics shows that cohabiting couples are the fastest growing family structure in the UK, yet the law still offers them very limited automatic protection.

Unlike married couples or civil partners, cohabitees do not inherit from each other by default. This makes having a professionally drafted Will absolutely essential.

This blog sets out the key issues cohabiting couples should consider when planning their Wills, particularly in relation to property, children, and financial protection.

What is a cohabitee?

A cohabitee is someone who lives with their partner in a romantic relationship without being married or in a civil partnership. The term is widely used in the UK, but it carries no special legal status.

Understanding how your property is owned

One of the most important starting points is understanding the legal basis on which your home is owned. This will determine what happens to the property on death, regardless of what you intend.

1. Joint Tenants

If you co-own a property as joint tenants, you each own the whole property together rather than owning distinct shares. When one cohabitee dies, their interest in the property passes automatically to the surviving owner through the right of survivorship, even if their Will says otherwise.

This can create problems where:-

Example:

Imagine A and B are cohabitees who own their home as joint tenants. A dies first. Because of the right of survivorship, B will automatically inherit the property even if A’s Will left their share to A’s children. Later, B dies and leaves everything to B’s own children, thus disinheriting A’s children.

2. Tenants in Common

If you own a property as tenants in common, you each own a distinct share (often 50/50 split, but not always). When one cohabitee dies, their distinct share in the property will pass according to their Will and not automatically to the surviving cohabitee.

This structure is often used where:-

The risks of not aligning your will with your property ownership

If you are tenants in common:-

If you leave your share to someone other than your partner (for example your children), the surviving cohabitee may:

If you are joint tenants:-

If you each have children from previous relationships, the survivorship rule means:

Many cohabitees choose to sever the joint tenancy and convert to tenants in common to avoid this.

Inheritance tax considerations

Unlike married couples or those in a civil partnership, who are exempt from paying Inheritance Tax (IHT) when passing assets to each other, cohabitees are not.

When a cohabitee dies, anything above their nil-rate band threshold of £325,000 may be taxed at 40%.

Cohabitees can still benefit from the Residence Nil‑Rate Band of up to £175,000 if they leave a qualifying residential interest to their lineal descendants. This means that in the right circumstances, a cohabitee can pass on up to £500,000 inheritance-tax-free.

Equally, married couples or those in a civil partnership can transfer unused allowances, whereas cohabitees cannot.

For some couples, the IHT advantages of entering into a marriage or civil partnership are significant enough to influence their estate planning decisions.

Considering a cohabitation agreement

Many cohabiting couples believe that living together gives them similar rights to married couples but in reality, “common‑law marriage” does not exist in the UK. A cohabitation agreement can therefore be an essential companion to a Will as together they provide clarity and protection.

A cohabitation agreement sets out how you and your partner intend to manage your finances, property, and responsibilities during the relationship and if it ends.

Cohabiting couples face unique challenges when it comes to estate planning, and ensuring your Will reflects your wishes is essential to protecting both your partner and your wider family. At Nelsons, our experienced team can advise you on property ownership structures, help you draft a Will that aligns with your intentions, and guide you through related issues.