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Know your Pink Law 6 - Property Rights
Scales of justice
A leading law firm gives advice on same-sex property rights
"Where there is no Will and the partners were not in a civil partnership, complications often arise"
What happens to jointly-owned property where a partner dies, there is no civil partnership, and the deceased never left a will?
It all depends on how the property was owned.
The partners will have owned the property as “joint tenants” or as “tenants in common”.
If partners owned the property as “joint tenants”, they would each have a 50% share in the net proceeds of sale of the property. On the death of a partner, the property would pass to the survivor automatically.
This would override any wishes expressed in a Will, and would also override the complicated statutory rules which apply when there is no Will (known as the rules of “intestacy”).
It is quite common for heterosexual couples to own a property as joint tenants when they are married, and it is now becoming popular for same sex-couples to own a property as joint tenants if they are in a civil partnership.
However, where partners own a property as “tenants in common” then each is able to decide upon the size of their share in the property.
In the absence of any declaration, it is presumed that each partner will hold a share equivalent to the contribution that was made to the original purchase price.
Unlike joint tenants, when a tenant in common dies, their share does not automatically pass to the survivor.
Where there is no Will and the partners were not in a civil partnership, complications often arise and it is quite possible that the intentions of the deceased will not be carried out.
This is because the deceased partner’s share in the property will be dealt with in accordance with the statutory rules of intestacy. These rules do not recognise two people who are a couple as next of kin for inheritance purposes unless they are in a civil partnership or married.
As a result, it is likely that the deceased partner’s share will pass to a blood relative or relatives, rather than their surviving partner.
The blood relatives are likely to want to sell the property to convert into cash the share of the deceased person. The surviving partner will not be able to prevent a sale in such circumstances.
Any same sex couples living together in a committed relationship, who are not in a civil partnership, are therefore advised to consider very strongly how any jointly owned property is owned, and how it should continue to be owned.
Taking control of who you would like to inherit your share of any jointly owned property is advisable because intestacy rules do not acknowledge couples who are not in a civil partnership.
By taking control and making a Will, there will be peace of mind and the result will be fair and acceptable to your surviving partner.
Russell Jones & Walker is a leading national firm of solicitors that has been upholding the legal rights of individuals for more than eighty years.
As partners of Stonewall, and through their work with the Terrence Higgins Trust, they are acutely aware of the specific legal issues faced by the gay community.
You can visit the Russell Jones & Walker website here
If you have any legal questions you would like answering then email Editor@pridelife.co.uk
