Family Law

Sameena Munir and Katie Allard
Kingsley Napley

'The President of the Republic may, for grave reasons, authorise  the celebration of the marriage where one of the future spouses is dead after  the completion of the official formalities indicating unequivocally his or her  consent.'

Posthumous marriages only happen in exceptional circumstances, not least because they require authorisation from the president of France. What is more, Art 171 states that any such marriage may not involve any right of intestate succession to the benefit of the survivor and no matrimonial regime is considered to have existed between the spouses. Whilst no equivalent practice exists in England and Wales, and French succession laws differ fairly significantly, it reminds us of the common problem of what happens when one half of an unmarried couple dies without leaving a will.

A common misconception is that a relationship develops some sort of legal status over time. The concept of a 'common-law marriage' is widely cited, but the reality is, in legal terms at least, there is no such thing. Unmarried partners are recognised for certain purposes in legislation, for example for means-tested benefits. However, this is not the case with regards to death and inheritance, and can leave the surviving unmarried partner without any provision.

So, what is the difference in practice between married and unmarried couples?

Unmarried couples

If a valid will leaves assets to the unmarried partner, then the position is clear and the partner inherits the assets in question. However, as an unmarried couple, the surviving partner will be liable to pay inheritance tax at 40% on assets that exceed the nil rate band, which is currently £325,000.

Should the unmarried partner die without leaving a valid will, then the surviving partner will not automatically inherit unless the couple owned property jointly. The deceased’s estate will be distributed under the strict rules of intestacy, which dictate in order of priority who will inherit from the deceased.

Under the current intestacy rules, a surviving spouse receives all the personal chattels and the first £250,000 of the estate, with the remainder passing 50% to the spouse and 50% to any children. If there are no children, the surviving spouse inherits the entire estate. The order of priority is: spouse or civil partner, children, parents, brothers and sisters, grandparents, aunts and uncles. If the deceased has none of these, everything passes to the crown.

If the deceased had been married and was separated from the spouse, the estranged spouse would have more right to the estate than the surviving partner under intestacy rules. This applies even if divorce proceedings have started – a decree absolute is needed to avoid this situation.

A person who finds themselves in the position where they have not been left reasonable provision by their partner (either under a will or under intestacy rules) may be able to bring a civil claim against the estate under the Inheritance (provision for Family and Dependants) Act 1975. However, such claims can be emotionally and financially draining.

Married couples

If there is a valid will which makes provision for the spouse, they will inherit as per the terms of that will. They will also be exempt from paying any inheritance tax.

If one spouse dies without leaving a will, then the other will still inherit some or all of the estate under the rules of intestacy.

People in civil partnerships are treated the same as married couples when it comes to death and inheritance.

Why make a will?

These are key situations in which you should consider making (or updating) a will:

• If you are in the process of separation but have not yet formalised the divorce.

• If you are re-marrying and wish to protect your children from a previous relationship.

• Marriage revokes a will so a new one should be made if you want to leave assets to somebody other than your spouse or if you want to leave your spouse and/or children more than their entitlement under the intestacy rules.

• Persons for whom the intestacy rules work particularly badly are married couples with young children. For tax purposes and financial practicality, it is much better to have a will leaving everything to the survivor rather than have a large proportion of the marital wealth tied up in unbreakable trusts for the children under the intestacy rules.

• If you wish your unmarried partner to inherit from your estate.

• If you feel particularly strongly about excluding someone who would otherwise be likely to inherit from your estate under the rules of intestacy.

The posthumous marriage between Jugelé and Cardiles highlights the financial uncertainty with which a surviving partner can be faced when provision has not been made under a will. Take care of your loved ones and ensure that your affairs are in order.