The coronavirus pandemic has led many to think about the mortality of family and friends for the first time.

Thousands of elderly, vulnerable and frail people have already fallen victim to the virus, while for others, their loved ones may already be receiving end of life care due to other medical reasons.

For some, a death bed marriage may be one way for couples to show their commitment during their last few days.

Exclusive figures from the Office for National Statistics (ONS) reveal that death bed marriages have increased in the three years to 2019. In 2017, there were 575 marriages solemnised by a Registrar General’s Licence, increasing to 624 in 2018 and 661 in 2019. So far in 2020, there have been 375 death bed marriages.

But what is a death bed marriage? How and when can you opt for it and what are the points you need to note in terms of legality and estate planning?

Death bed marriages

As part of the special and emergency Registrar General’s Licence, people can get married or enter a civil partnership (including same sex couples) anywhere, 24 hours a day where one person is seriously ill, not expected to recover and can’t be moved to a place registered for marriage.

As such, the wedding can take place in care homes, hospitals, private homes and hospices, even on the same day of the application. They’re legally valid in the same way as other marriages.

You can apply via your local registrar office but there are three conditions that need to be met:

• The person needs to be of full age – 18, or 16 with the consent of legal guardians
• Not already married
• Sound of mind (has capacity). Medical evidence from a doctor will need to be provided.

On the last point – sound of mind – this has been a grey area according to professionals in the field. See below for more information on this point.

Reasons for a death bed marriage

There are a number of reasons why couples may wish to carry out death bed marriages, whether it be to confirm their commitment to each other, a final romantic gesture or for faith reasons.

However, there are more practical reasons, such as to protect the surviving spouse.

Eleanor Evans, partner, trusts and estates administration at Hugh James, says: “The law does not recognise the concept of a ‘common law marriage’, and so the survivor of a co-habiting relationship will not automatically inherit their partner’s estate, or have the same tax benefits as a married person. By marrying when one partner is terminally ill, the couple can ensure the survivor has the legal protections that are afforded to a married person.” 

Andrew Wilkinson, partner at Lime Solicitors, adds: “An unmarried partner has no automatic rights under the intestacy rules, where a spouse does,” while Julian Hawkhead, senior partner at Stowe Family Law, says marriage protections could also extend to inheritance of assets or the receipt of widows entitlements that would be paid from pension schemes or life insurance.

Advantages of a death bed marriage

The experts noted the financial protections that come with marriage. Hawkhead explains: “Even if a couple has been together for 40 years, have children, own property and other assets jointly, they do not have the same rights and protections that married couples, and civil partners have.

“For cohabiting couples, if one partner dies without leaving a will, their assets will generally pass onto blood relatives – not their partner.”

The act of marriage also automatically revokes an existing will, unless it is prepared in contemplation of marriage.

Wilkinson says: “Therefore unless the will was prepared on that basis, or a will is signed after the marriage, then the rules of intestacy will apply. That will mean that a spouse will inherit a significant proportion of the estate.”

Under the intestacy rules (where a person dies without making a will), those in a marriage or civil partnership where children are involved, mean that the surviving spouse is entitled to inherit all of their personal belongings and the first £270,000 of their estate, plus half of the remaining estate once divided. Where there are no children, the surviving spouse will inherit the whole estate.

Evans adds there are significant inheritance tax advantages for married couples or those in civil partnerships.

“Inheritance tax free allowances can be transferred between spouses/civil partners, meaning that the survivor of a married couple can benefit from up to double the allowance of a single person,” she says.

What are the disadvantages/what do you or your family need to consider?

Hawkhead notes there’s the potential for an inheritance dispute after a death bed marriage when other family members believe they should have inherited some, or all, of the estate.

Of particular note are children from an earlier marriage or relationship and the extent to which their inheritance is affected by the new spouse receiving a significant share of the assets.

“An example was the case of Wharton v Bancroft where the husband married his partner of 32 years and made a will to leave everything to her after being told he did not have long to live.

“His daughters challenged the will based on the fact that he was unable to understand the meaning of it.

“However, the court found that Wharton was not coerced into changing his will and was a capable testator,” he says.

Given that marriage revokes an earlier will, people can also challenge the will if it’s considered there was insufficient provision made for them.

“The Inheritance Act of 1975 allows people to make claims against an estate if they have not been ‘reasonably financially’ provided for, not inherited due to no will or been left out of a will.

“However, it is worth noting that any challenge will be assessed on financial need more than entitlement and challenges,” Hawkhead adds.

He says he is aware of a case where there was a death bed marriage but the ill spouse then recovered and regretted the decision to marry.

“By that time, it was too late to nullify the marriage, and they had to go through a divorce process in which his wife was due a significant financial settlement”, Hawkhead warns.

Another point relates around capacity, as mentioned earlier. Wilkinson says: “I have dealt with disputes about whether death bed marriages are valid due to concerns about lack of capacity.

“That said, the test for capacity to marry is fairly low (much lower than the test for capacity to make a will) so those arguments are difficult.

“There are also important distinctions between a void marriage and a voidable marriage. A marriage where someone lacks capacity is a voidable, not void marriage. Thus, even if the marriage is subsequently declared a nullity, its effect will still have been to revoke any previous wills.”

Hugh James is currently dealing with a death bed marriage dispute. Evans says: “The differing tests on capacity have led to what some commentators have reasonably called questionable results.

“For instance, as marriage generally revokes a will, there have been cases where a person, perhaps lacking the necessary capacity to make a will, was still able to marry on their deathbed. That had the effect of revoking that person’s will such that their entire estate passed to their new spouse.”

She adds that there are concerns among some in the legal and mental health sector that “more considered steps should be taken when assessing a person’s capacity to marry given the impact this has on the devolution of a person’s estate”.

The coronavirus pandemic

More than 50,000 people have died as a result of coronavirus; many elderly, vulnerable and frail.

The pandemic and death rate has brought mortality to the fore and Hawkhead says that for those in the awful situation where a death bed marriage is considered: “I would recommend that proper estate planning, i.e. preparing a will is also undertaken. Particularly so with coronavirus, where the impact is fast and often so serious that a person is unable to participate in the act of marriage.”

Evans adds that the pandemic, lockdown and self-isolation rules have had a knock-on effect on the ability to make wills which is why the government has introduced legislation allowing people to witness wills remotely.

She concludes: “The same factors which have led to difficulties with making wills have also led to similar difficulties with people wanting to marry.”