My partner and I are not married, what happens if one of us dies?

My partner and I are not married, what happens if one of us dies?

“What haoppens if my partner dies?” This is a difficult question that no one ever should have to ask. However, if this has happened to you, we are here to help. Many factors might influence a couple’s decision to remain unmarried. Reasons may be religious or ideological, a natural aversion to public events, or simply a lack of time to organise the ceremony.

Whatever the reason, couples are encouraged to formalise their relationship under the law – whether through marriage or a civil partnership – to protect their claims to a partner’s estate and avoid paying higher rates of inheritance tax.

In March the people of Ireland will vote in a referendum on the Thirty-Ninth Amendment of the Constitution (The Family) Bill 2023. It proposes to amend Article 41.1. of the Constitution and, if passed, this may bring about changes to this area of law which we will post about if it happens.

But, at present, because bereaved partners are treated as strangers in the eyes of the law, the legal importance of tying the knot cannot be underestimated.

In the event of your death, who inherits your estate constituting all your assets, including bank deposits and property, depends on whether you have made a will or not. Whether the family home or other assets are held in your sole name or joint names with your partner is important to know, and it is also important to understand the legal implications of holding a property as joint tenants or tenants in common.  For the purpose of this article, we will consider the assets are held in your sole name.

If you die having made a will, you are said to die testate.  If you have not made a will, you are said to die intestate.  By making a will, you choose who is to inherit your assets.  If you die intestate, the law sets out who is to inherit your assets.  This is set out in the Succession Act 1965.

In an intestacy situation, the law sets out that your next of kin (apart from your spouse/civil partner/adopted children) is determined by your family blood line.  If you are married or in a civil partnership, your next of kin is your wife or husband. If you are unmarried, your next of kin is determined on whether you have a child, if not, whether you have a surviving parent, and it continues along a family line (or blood line) as set out in the legislation. There is no reference to partner or common law spouse in this list.

Therefore, it is very important for a couple to have a will in place to deal with this situation. It is also equally important to know if your partner has previously made a will, as cohabiting does not have any effect on a previous will, unlike marriage which revokes a previous will.

In an intestacy situation, if the next of kin is the child of an unmarried couple. The surviving partner will probably be the legal guardian of the child depending on the family arrangements as set out under the law.  However, life can get messy and there is no security for the surviving partner long term.

The surviving partner may have to bring a claim under the redress scheme for cohabiting couples set out in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Bringing such a claim while grieving is one of the most distressing things you or your partner will have to do.  There are strict time limits in bringing such a claim and an application to Court must be made within six months of the issue of a Grant of Probate/ Administration.  This does not mean six months from the date of death.  Legal advice should be sought quickly in all such situations.

The issue of inheritance tax is also a sticky one for unmarried couples. Bereaved partners are liable to pay tax at a rate of 33% on inheritance over €16,250. This is a lifetime threshold for your partner and doesn’t mean that he/she can inherit multiples of this threshold.  This figure is not set in stone and does change from time to time, according to changes in the tax laws.

If a couple were cohabiting and the surviving partner inherits the family home, he/she could qualify for tax relief on inheriting the family home under what is called ‘dwelling house relief’.  There are technical requirements to qualify for this relief and not everybody qualifies for it.  If the inheritance comprises of assets other than the family home, the surviving partner can be hit with a mammoth inheritance tax bill.

Such circumstances are not uncommon and only add unnecessarily to the grief and aggravation of the surviving partner. However, these situations can be averted by marriage or civil partnership, which have huge benefits in terms of tax, social welfare and inheritance rights. Many people get married for tax and legal reasons and while not very romantic, maybe this is something you should look into if you are co-habituating long-term.

However, in January 2023 the Supreme Court unanimously ruled that the exclusion of a bereaved unmarried father of three from the widower’s contributory pension (WCP) scheme was unconstitutional.  This area of social welfare law will change following the court decision.

Finally, a word of warning: if you were previously married and didn’t finalise a formal legal separation/divorce prior to your death, your estranged spouse could qualify for an inheritance both in the case of you dying testate or intestate.  This is a technical area and can become very complicated if you have not put your affairs in order before your death.

If you need help or advice on this or any other legal issues, please click here to contact us.

Or call or make an appointment with Marguerite on 044 9347655 or email info@buckleyandco.ie.  We will be happy to help.

Please remember that this blog is written for information purposes in January 2024.  This area of law may be subject to change and specific legal advice should be sought in every case. 

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