Unmarried Parents and Your Rights: Lessons from the Siobhan McLaughlin Case. By Richard Hodge, Will and Estate Planning Expert at Fielding Triggs

In August 2018, Siobhan McLaughlin won a landmark Supreme Court case for the right to claim bereavement benefits.

Her claim was for state benefits that only married couples / civil partners can access if they have paid sufficient national insurance and are eligible for child benefit.

For our Will and Estate Planning specialists, it felt like a familiar scenario and we watched the case with interest. The case doesn’t relate to intestacy laws, however it has potential to influence cases where children from unmarried couples are not provided for in a will. Unmarried couples without children can also lose out after their partner dies if there is no will.

Siobhan McLaughlin was a widow in everything but law. She had lived with her partner, John Adams, for 23 years and they had four children together. Like so many modern day families, the couple had never married. So far, so normal.

However when John Adams died in 2014, the couple’s unmarried status became an issue. An issue that the Supreme Court eventually ruled was incompatible with human rights law. Siobhan McLaughlin was not eligible to claim Widowed Parent’s Allowance.

When Is A Widow Not a Widow?

In our line of work we are compelled to point out the difference often. Common law marriage, co-habiting partners, unmarried parents, merged families. In everyday life, there may be no difference to a traditional family. However the law doesn’t always keep up with life. If your partner dies out of wedlock without a Will, the couple’s intentions may not match reality.

Three differences for married and unmarried couples without a will.

  • You have children from a previous relationship or marriage. You marry a new partner. Every marriage revokes a will. So, whether you had written a will before the marriage or not, 100% of the inheritance goes to the new spouse when you die, even if you had intended for your children from the previous relationship to benefit. With a will and estate plan, you can choose where your assets go.
  • If a person dies without a will, married or not, they will die intestate and the rules are very strict. First £250,000 to spouse plus 50% of the rest. The children of the deceased get the other 50% in trust if not aged 18+.  If there is no spouse then it reverts to their children, if no children their next of kin. If you intend for your unmarried partner to inherit, you need to write your will.
  • What if you own your home together as joint tenants, you do not have a will and your your unmarried partner dies? If the home is owned as “Joint Tenants” the survivor automatically inherits the deceased share.  This will incur Inheritance Tax if the properties net (after mortgage deduction) value is equal to more than the Nil Rate Band plus the Residential Nil Rate Band. The common problem with this issue is that when couples get together, normally only one of them owns the house. This will mean that children of the deceased inherit the property and the “Partner” can be asked to move out of the house by the children.

I am pleased for Siobhan McClaughlin that she was able to get what she wanted for her family. Make sure you can do the same by writing your will. Your wishes may not become reality without it.