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“It’s Complicated” – Lifetime Planning And Marital Status

17th April 2021

“It’s Complicated” – Lifetime Planning And Marital Status

The coronavirus pandemic has seen many marriage or civil partnership ceremonies postponed. A recent survey found that 71% of couples had postponed their weddings rather than proceed with just a handful of guests.

Many couples also prefer not to formalise their relationship. But they will not be as well protected and it is important that couples ensure they plan accordingly for themselves and their partner in later life.

Our previous post focused on the implications of marital status on making a will. In this post we outline some of the other issues you need to consider as part of lifetime planning.

Later Life, Financial Management And Mental Capacity

Regardless of marital status, no one can access your sole financial accounts unless you have granted authority to them, such as under a financial Lasting Power of Attorney (LPA).

While making a financial LPA is generally advisable, many people find themselves caring for a loved one who has lost mental capacity and without any authority to deal with that person’s affairs. When this happens, they will need to apply to court to be appointed as the person’s deputy. The court will require sufficient evidence that they are the most appropriate person. For many cohabiting couples, this can be trickier to establish than for those who are married or civil partners. It is even more important for someone who is cohabiting to take steps to protect themselves in the event of lost capacity, by making an LPA while they are able to do so.

Next Of Kin And Health Decisions

Married couples and civil partners are recognised as next of kin for medical purposes.

Couples who are cohabiting and who are not in a legally recognised union are not automatically considered next of kin and, as such, you could find yourself in a situation where medical decisions are made on your partner’s behalf without your involvement.

In order to overcome this, cohabiting partners can also make a separate LPA to appoint each other for healthcare decisions. Obtaining professional advice will help you to ensure that all necessary authorities are adequately granted under the LPA.

Assets Outside The Estate

When it comes to how your estate will be dealt with after you have died, this largely relies on your will or on the ‘intestacy’ rules. However, some assets pass without reference to a will or the intestacy rules. Instead, the person who inherits these assets will depend on the nature of the asset itself.

For example:

  • Property owned as joint tenants passes to the surviving owner, no matter the relationship. Therefore, if you own property as a cohabiting couple (or as brother and sister) as joint tenants, the survivor will be entitled to the whole of the property when one of you dies. However, owning property as joint tenants may not be suitable during your lifetime, for example if you have contributed different amounts to the purchase price, so you should always seek expert advice on the overall legal implications.
  • Occupational pensions and death-in-service benefits, may be determined by the pension trustees. Whilst it may be easy for the trustees to decide that a spouse or civil partner should receive these funds, if you are a cohabiting couple it could prove more difficult for the trustees to establish that payment should be made to your cohabitee. Couples in this situation should speak with their pension providers about nominating each other as their chosen beneficiary. You should also seek legal advice as to the full implication of any such nomination.
  • Life policies and other sums written into trust during your lifetime will be paid directly to the beneficiaries of the trust by your trustees. Before making a lifetime trust, it is important to obtain advice on the legal and tax implications.

If you are a cohabiting couple, you should seek legal advice to ensure that you have put in place the best lifetime planning possible in light of your circumstances.

How We Can Help

For all couples, it is vital that you understand your legal rights and that you ensure your wishes and intentions are properly protected and upheld. We can explain how your estate will be dealt with in view of your circumstances and help you plan to achieve your wishes.

For further information, please contact us.

Notes

For more information about Lasting Powers of Attorney, click here.

For more information about making a will, click here.

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