Till death do us part?

We’ve said it before, and we’ll say it again. Make a will, and make sure your loved ones are properly provided for.

Consider the recent case of a couple from the west country. We’re calling them a couple, because in terms of household and emotional ties, that’s what they were. But by some lights – and on a strict interpretation of the law, they weren’t.

For a start they weren’t married or civil partners. What’s more, one of them – the man with whose death this brief story begins – was still married to someone else. He lived with his partner, and had been estranged from his wife for the best part of two decades. And then, sadly, he died.

Tenants in common

According to reports, the house that the couple owned was held by them as tenants in common. That means that they each owned a defined share, rather than each of them being entitled to all of it. That may sound like a legal technicality, but it had a really serious effect.

If you own property as joint tenants, then when one partner dies the survivor automatically becomes entitled to the whole. But if you own something as part of a tenancy in common, then your share becomes part of your estate when you die. And if your partner is not your heir, then your share of the property will go to someone else. For more information, see our page Joint property ownership.

That’s what happened here. The deceased’s share of the property passed to his estranged wife, who because they were not divorced was entitled as his spouse to inherit.

Does that sound right to you?

Family and dependants

Well it didn’t sound right to the court, either. Thankfully, there is a legal provision that covers this sort of eventuality. An Act from 1975 looks after family and dependants who have either been overlooked in a will, or would not receive anything under the rules of intestacy (the rules which apply when there is no will), if it would have been reasonable for them to be provided for.

Read more about disinheriting family and dependants.

The report we read wasn’t clear whether a will had been left, and even reading between the lines it doesn’t help, because owning houses as tenants in common is quite usual when people are in a second relationship and have previous family ties. It’s quite possible that the deceased intended his share to be held for his children. We don’t know. What we do know is that the court decided the partner was entitled to the home.

If there was a recent will, however, we imagine that the property might well have been disposed of clearly. And even if the property was expressed to go to the estranged wife, that same Act might have been invoked. Because it doesn’t just protect people who have been forgotten, but also those who have been deliberately omitted. 

Avoiding the avoidable – make your will

Everyone’s relationships are serious. Sometimes those relationships change, and the way they impact on the practical sides of our lives can become more complicated as a result. But it’s far better to plan for those practicalities while you can.

As we said, the report we read was not a very full one. But we don’t need a lengthy analysis to know one thing: if you have a clear, up to date will, you will reduce hugely the chances of upset, dispute and stress, and the awful prospect for your loved ones of litigation, when they would rather be trying to deal with their loss.

If you have a will already – review it. And review it regularly. If you don’t have one – make one. You’ll be easier in your mind knowing that the right people are cared for.