There is no such thing as a “common law spouse” in English law — and the consequences for unmarried couples who do not plan ahead can be catastrophic.
Despite decades of social change, the law in England and Wales has not kept pace with the way people actually live. According to the Office for National Statistics, cohabiting couples are the fastest-growing family type in the country. More than 3.6 million couples now live together without being married or in a civil partnership.
Yet the legal protections available to these couples on death remain startlingly thin. If one partner dies without a Will, the survivor may inherit nothing at all — regardless of how long they lived together, whether they have children, or how much they contributed to the household.
This is not a hypothetical risk. It happens every week in families across the country.
The Intestacy Rules: Where Unmarried Partners Are Invisible
When a person dies without a valid Will, their estate is distributed according to the intestacy rules set out in the Administration of Estates Act 1925 (as amended). These rules follow a strict hierarchy:
1. Spouse or civil partner
2. Children
3. Parents
4. Siblings
5. More distant relatives
6. The Crown (if no relatives can be found)
Unmarried partners do not appear anywhere in this hierarchy. A cohabiting partner of thirty years has no automatic right to inherit a single penny under the intestacy rules. The family home, savings, investments — everything passes to the children, parents, or siblings of the deceased.
If the couple owned property as joint tenants, the surviving partner will inherit the deceased’s share by right of survivorship. But if the property was held as tenants in common — or if it was in the deceased partner’s sole name — the survivor has no automatic right to remain in the home.
The Myth of Common Law Marriage
Research consistently shows that a significant proportion of the public believes in the concept of “common law marriage” — the idea that living together for a certain period of time gives couples the same legal rights as married couples.
This is entirely wrong. There is no such legal status in England and Wales. It does not matter whether the couple have lived together for two years or twenty. It does not matter whether they have children together. It does not matter whether they share finances, a mortgage, or a surname.
Without a marriage certificate or civil partnership registration, the surviving partner is a legal stranger to the deceased’s estate under the intestacy rules.
The Inheritance (Provision for Family and Dependants) Act 1975
The one legal avenue available to unmarried partners is a claim under the Inheritance Act 1975. This allows certain categories of people to apply to the court for “reasonable financial provision” from the estate if the Will (or intestacy) does not adequately provide for them.
Cohabiting partners can make a claim if they lived with the deceased “as husband and wife” (or as civil partners) for at least two years immediately before the death. This is often referred to as a “section 1(1)(ba)” claim.
However, there are important limitations:
The standard of provision is lower.
A surviving spouse is entitled to claim whatever the court considers reasonable, taking into account what they might have received on divorce. An unmarried partner is only entitled to “maintenance” — a lower standard that focuses on meeting their reasonable needs rather than sharing the estate fairly.
The claim is uncertain.
There is no guarantee of success. The court considers a wide range of factors, including the financial resources of the applicant, the size of the estate, the needs of other beneficiaries, and the nature of the relationship. The outcome is unpredictable.
The process is expensive and adversarial.
Bringing a claim means going to court — often against the deceased’s family. Legal costs can be substantial, the process takes months or years, and it can cause irreparable damage to family relationships at an already difficult time.
The two-year rule is rigid.
If the couple had been living together for one year and eleven months, the claim fails. There is no discretion.
Property Ownership: The Hidden Trap
For cohabiting couples, how the family home is owned is critically important.
Joint tenants: If the property is held as joint tenants, the surviving partner automatically inherits the deceased’s share by right of survivorship. This happens regardless of what the Will says and regardless of the intestacy rules. It is the safest way for cohabiting couples to hold property together.
Tenants in common: If the property is held as tenants in common, each partner owns a defined share (typically 50/50, but it can be any split). On death, the deceased’s share forms part of their estate and is distributed according to the Will or intestacy rules. If there is no Will and the couple are not married, the surviving partner has no right to the deceased’s share.
Sole ownership: If the property is in one partner’s name only, the other partner has no automatic right to remain in the home. They may have an equitable interest if they contributed to the purchase price or mortgage, but proving this requires a court application — another expensive and uncertain process.
Children and Parental Responsibility
Having children together does not change the inheritance position for unmarried partners. The children will inherit under the intestacy rules (if there is no Will), but the surviving parent does not automatically benefit.
This can create deeply uncomfortable situations. A mother may find that her deceased partner’s estate passes entirely to their young children, with the funds held in trust until the children reach 18. She may have no right to use those funds for the family’s day-to-day living expenses, and she may have no right to remain in the family home.
What Unmarried Couples Should Do
The message is straightforward: if you are not married or in a civil partnership, you must have a Will.
1. Make a Will.
This is non-negotiable. A properly drafted Will can ensure your partner inherits the home, a share of your estate, or specific assets. Without it, they receive nothing under the intestacy rules.
2. Review property ownership.
Check whether the home is held as joint tenants or tenants in common. If you want your partner to inherit your share automatically, joint tenancy is usually the better option. If you have children from a previous relationship and want to protect their inheritance, tenants in common with a life interest trust may be more appropriate.
3. Update beneficiary nominations.
Ensure your pension nominations and life insurance policies name your partner. These assets pass outside the Will, so the nomination form is the only document that matters.
4. Consider a cohabitation agreement.
This is a legal document that sets out how property and finances are to be divided if the relationship ends. Whilst not directly related to inheritance, it provides clarity and can reduce disputes.
5. Think about life insurance.
If your partner depends on your income, life insurance written in trust can provide immediate funds on death — without waiting for probate and without being subject to IHT.
6. Appoint guardians for children.
If you have children under 18, your Will should name a guardian. For unmarried fathers, check that you have parental responsibility — this is not automatic for all fathers and may need to be registered.
The Case for Legal Reform
There have been repeated calls to reform the law to give cohabiting couples greater protection. The Law Commission recommended changes as far back as 2007. Scotland introduced limited rights for cohabiting partners in 2006. But in England and Wales, no legislation has been enacted.
Until the law changes, the only protection available to unmarried couples is proper planning. A Will, appropriate property ownership, and up-to-date nominations are not optional extras — they are essential.
The Legacy Wills Company helps unmarried couples protect each other and their children. If you are cohabiting without a Will, book a free discovery call to discuss your options.