There are couples who have lived together for twenty or thirty years, raised children together, bought a home and shared virtually every aspect of their lives, but who have very different inheritance rights from a couple who are married or in a civil partnership.
This still catches people out. We regularly hear the term “common law husband” or “common law wife”, usually from people who assume that living together for long enough eventually gives a couple broadly the same legal status as being married.
In England and Wales, it doesn’t. There is no common law marriage and, under the current intestacy rules, an unmarried partner does not automatically inherit from their partner’s estate.
For couples who have chosen not to marry or enter into a civil partnership, that makes having the right estate planning in place particularly important.
What happens if my unmarried partner dies without a Will?
If somebody dies without a valid Will, their estate is distributed according to the intestacy rules.
Those rules give inheritance rights to a surviving husband, wife or civil partner and, depending on the family circumstances, to children and other relatives. An unmarried partner is not included simply because the couple lived together.
How long the relationship lasted does not change that.
A couple could have been together for three years or thirty years. They might have children together, regard themselves as a family and have completely combined their finances. None of those things, by themselves, give the surviving partner an automatic right to inherit under the intestacy rules.
Where the deceased had children, their estate may pass to those children. If there are no children, other relatives can inherit according to the statutory order.
That can leave a surviving partner in a difficult position, particularly if they had expected to inherit money or other assets from the estate.
What about a house we own together?
The family home needs to be considered separately because the outcome can depend on how it is owned.
If a couple own their home as Joint Tenants, the deceased owner’s interest will normally pass automatically to the surviving Joint Tenant through the right of survivorship. It does not pass under the intestacy rules or through the deceased person’s Will.
Where the couple own as Tenants in Common, each has a separate beneficial share. The deceased person’s share can pass under their Will, but without a valid Will it will form part of the estate dealt with under the intestacy rules.
This distinction can make an enormous practical difference for an unmarried couple.
Someone may assume that their partner will inherit their share of the house because they bought it together and have both lived there for years. If they actually own as Tenants in Common and there is no Will leaving that share to the survivor, that assumption may be wrong.
We have covered Joint Tenants and Tenants in Common in more detail in our article on what happens to jointly owned property when someone dies.
Can an unmarried partner make a claim against the estate?
There are circumstances in which a surviving partner may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Among the people who may qualify to apply is someone who, for the two years immediately before the death, was living in the same household as the deceased as though they were married or civil partners. There are also provisions for people who were being maintained by the deceased, which can be relevant in other circumstances.
This is not the same as having an automatic right to inherit.
A claim asks the court to consider whether reasonable financial provision has been made for the applicant. The outcome will depend on the circumstances, including matters such as the applicant’s financial position and needs, the size and nature of the estate and the interests of other beneficiaries.
Relying on the possibility of a claim is very different from putting a Will in place while both partners are alive and able to decide for themselves what they want to happen.
Does having children together make a difference?
Having children together does not turn an unmarried relationship into a marriage or give the surviving partner the inheritance rights of a spouse.
The children themselves may have inheritance rights under the intestacy rules, but that does not mean their surviving parent inherits as well.
This can create situations which families had never anticipated. A couple may have thought of everything they own as belonging to the family collectively, while the legal position following one partner’s death can be much less straightforward.
There are also practical questions to consider where children are young. A Will allows parents to think about who they would want to act as executors, how an inheritance should be managed for children and who they would want to appoint as guardians if there were no surviving parent with parental responsibility.
Making a Will gives unmarried couples much more control
A Will allows you to decide who should inherit your estate rather than leaving that decision to the intestacy rules.
For an unmarried couple, that might mean leaving some or all of the estate to a partner. Where there are children from a current or previous relationship, the planning may need more thought so that the needs of the surviving partner can be considered alongside what each person wants their children to inherit.
The right answer will not be identical for every couple.
Some people want everything to pass outright to their partner. Others want their partner to be financially secure while ensuring that particular assets eventually pass to their children. Property ownership, pensions, life policies and other assets may also need to be considered because not everything necessarily passes under a Will.
The useful starting point is to establish what each person owns, how those assets are held and what they actually want to happen if one of them dies.
Inheritance is only part of the planning
There is another assumption we encounter with unmarried couples: that if one partner became unable to make decisions for themselves, the other would automatically be able to step in.
Being someone’s partner does not, by itself, give you general legal authority to manage their finances or make decisions on their behalf.
Lasting Powers of Attorney allow someone to choose who they would trust to deal with those decisions. There are separate LPAs for property and financial affairs and for health and welfare.
For a couple who have deliberately chosen not to marry, it is therefore worth thinking about Wills and LPAs together. A Will deals with what should happen following death, while LPAs deal with decisions that may need to be made during your lifetime.
What if we’ve been together for decades?
The length of the relationship can feel as though it ought to change the answer, which is probably one reason the common law marriage myth has survived for so long.
Under the current intestacy rules, however, an unmarried partner does not acquire an automatic entitlement simply by reaching a particular anniversary.
There are proposals being considered by the Government in 2026 which could change the law for some cohabiting couples in the future, but those proposals are currently the subject of consultation. They should not be mistaken for the law as it stands today.
For now, couples who want to provide for one another need to plan on the basis of the existing rules.
A conversation worth having
Marriage is a personal choice and plenty of couples have no intention of getting married. Estate planning is not about suggesting that they should.
It is about making sure that a couple who have chosen to build a life together have also considered what would happen if one of them were no longer there.
At AHJ Wills & Estates, we work with individuals and couples across Sheffield, Rotherham and the surrounding areas to put Wills and Lasting Powers of Attorney in place that reflect their actual circumstances.
If you are living with your partner and neither of you has made a Will, it is worth finding out what would happen under the current rules. You can then decide whether that is what you would want.
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