The inheritance position for unmarried couples in England and Wales could be about to change.
Earlier this year, the Government launched a consultation looking at the rights of couples who live together without marrying or entering into a civil partnership. Among the proposals is a significant change to the intestacy rules, which could allow some surviving cohabiting partners to inherit automatically when their partner dies without a valid Will.
For the moment, however, the existing law still applies. An unmarried partner has no automatic right to inherit under the intestacy rules, regardless of how long the couple have lived together or whether they have children. The Government’s proposals have not changed that.
Given how widespread the idea of “common law marriage” remains, it is an important distinction.
What is the Government proposing?
The Ministry of Justice consultation, A Fairer End to Relationships, looks at several areas of law affecting couples when relationships end, including what happens when one partner dies.
One of the proposals is to bring qualifying cohabitants into the intestacy rules.
At present, if somebody dies without a valid Will, their estate passes according to a statutory order. A husband, wife or civil partner can inherit under those rules, while an unmarried partner cannot.
The Government is considering whether a qualifying cohabiting partner should instead have the same inheritance rights on intestacy as a spouse or civil partner.
That would be a considerable change to the current position, although there are some difficult questions to answer before any new system could operate.
Perhaps the most obvious is deciding who qualifies.
How long would a couple need to have lived together?
There is no final answer yet.
The Government has been considering whether there should be a minimum period of cohabitation before somebody acquires inheritance rights.
Previous Law Commission work suggested five years for couples without children together. Where a couple have a child together, a shorter period of two years was proposed.
The recent Government consultation asked whether those periods are appropriate rather than presenting them as settled rules.
There is good reason for the detail to require thought. Giving somebody automatic inheritance rights affects more than the surviving partner. It can also alter what the deceased person’s children and other relatives receive, which becomes particularly relevant in blended families.
A person could, for example, be living with a new partner while also having children from an earlier relationship. Any system that automatically gives the new partner a share of the estate needs to consider what that means for those children.
A Will allows somebody in that position to make those decisions themselves.
Would this create “common law marriage”?
No.
The proposals should not be confused with the idea that couples become common law spouses after living together for a particular number of years.
There is currently no common law marriage in England and Wales, and the Government is not proposing to turn cohabiting couples into married couples.
What is being considered is much more specific: whether certain cohabitants should acquire rights under the intestacy rules when their partner dies without a valid Will.
Marriage and civil partnership carry legal consequences across many different areas. A change to intestacy law would not make the two situations legally identical.
What happens if my unmarried partner dies now?
Until the law changes, the current intestacy rules remain in force.
An unmarried partner does not automatically inherit from their partner’s estate simply because they lived together.
This can be particularly significant where one person owns the family home in their sole name, or where a couple own a property as Tenants in Common and each has a separate share.
Jointly owned assets can sometimes pass outside the estate. A home owned as Joint Tenants, for example, will normally pass to the surviving joint owner through the right of survivorship. We have covered the distinction between Joint Tenants and Tenants in Common separately because the way a property is owned can completely alter what happens following a death.
For assets which do fall into the estate, an unmarried partner currently needs a Will in their favour if they are to inherit directly rather than relying on the intestacy rules.
Can a surviving partner make a claim if there is no Will?
Potentially.
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to apply for reasonable financial provision from an estate.
This can include a partner who lived with the deceased in the same household as though they were married or civil partners for at least two years immediately before the death. There are other circumstances in which somebody who was being maintained by the deceased may also be eligible to apply.
The Government is considering changes in this area as well, particularly where a cohabiting couple have a child together.
An application under the 1975 Act is not the same as automatically inheriting. It involves making a claim against the estate, and whether any provision is awarded will depend on the individual circumstances.
For a surviving partner dealing with a bereavement, having to consider court proceedings against an estate is hardly an attractive substitute for having clear arrangements in place beforehand.
If the law might change, is there any point making a Will now?
Yes.
Even if some version of the proposals eventually becomes law, intestacy will remain a fallback for people who die without a valid Will. It is not designed to reproduce every individual’s wishes.
This becomes particularly apparent when families are more complicated.
Someone may want their partner to inherit the house but leave other assets to their children. They may have children from a previous relationship whom they specifically want to provide for. They might want to include stepchildren, friends or charities, appoint particular executors or decide how an inheritance should be managed for younger beneficiaries.
An automatic entitlement for a cohabiting partner cannot answer those questions.
There is also no guarantee at this stage that the proposals will become law in their current form, or when any change might take effect.
Putting off a Will because the law may change would mean relying on rules that, today, still give an unmarried partner no automatic entitlement under intestacy.
What could this mean for blended families?
This is one of the areas where any reform will need particularly careful consideration.
Suppose someone has children from a previous marriage and later lives with a new partner. They never make another Will.
Under the current intestacy rules, the cohabiting partner does not automatically inherit. Depending on the circumstances, the deceased person’s children may instead inherit the estate.
If qualifying cohabitants are eventually brought within the intestacy rules, some or all of that estate could potentially pass to the surviving partner instead.
The Government’s consultation acknowledges this issue. Extending inheritance rights to cohabitants could reduce what is available to children from previous relationships, which is one reason the proposed qualifying periods are being considered carefully.
Families do not always fit neatly into statutory rules, whether those rules are the ones we have now or a new version introduced in the future.
What should unmarried couples do now?
There is no need to wait and see what Parliament eventually decides.
If you live with somebody and want them to inherit from you, you can already make provision for them through a properly drafted Will. You can also decide what should happen to your property, consider provision for children and choose the people you want to administer your estate.
It is worth checking how jointly owned property is held at the same time. A Will and the ownership of the family home need to make sense together rather than being considered separately.
The Government’s proposals are interesting because they recognise something estate planners have encountered for years: many couples live together believing they have legal rights that they simply do not have under the current law.
That position may change. It hasn’t changed yet.
At AHJ Wills & Estates, we help individuals and couples across Sheffield, Rotherham and the surrounding areas understand what would happen to their estate under the law as it stands and put appropriate arrangements in place.
If you and your partner are not married or in a civil partnership, you do not need to wait for the law to decide what should happen to your estate. You can decide for yourselves by making a Will.
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