Many people are surprised to learn that, in England and Wales, living together does not currently give unmarried couples the same inheritance rights as married couples or civil partners.
If someone dies without a valid will, their estate is distributed according to the rules of intestacy. Those rules determine who inherits and in what order, regardless of what the deceased may have intended.
For cohabiting couples, this can create difficult situations at an already distressing time. A surviving partner may discover they have no automatic right to inherit, remain in the family home, or even receive personal belongings that hold significant sentimental value.
The Government has recently consulted on proposals that could change this position for some cohabiting couples. The consultation considers whether qualifying cohabiting partners should inherit under the intestacy rules in broadly the same way as spouses and civil partners.
However, even if the law changes, a properly drafted will remains the clearest way of ensuring your wishes are carried out.
Do unmarried couples have automatic inheritance rights?
No. At present, unmarried partners do not automatically inherit under the intestacy rules, regardless of how long they have been together.
This often comes as a surprise to couples who have shared a home, raised children together or built a life together over many years. Many people mistakenly believe that “common law marriage” gives them legal protection. In reality, no such legal status exists under inheritance law.
If someone dies without a will, their spouse or civil partner may inherit under the intestacy rules. However, a cohabiting partner is currently not included within those rules and may need to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.
While such claims can succeed in some circumstances, they may involve additional uncertainty, legal costs and emotional stress during an already difficult period.
Could inheritance laws change for cohabiting couples?
Possibly. The Government has consulted on reforms that would give greater protection to qualifying cohabiting partners when someone dies without a will.
The consultation considered factors such as the length of the relationship and whether the couple have children together when determining who may qualify. The Government has indicated support for a model under which qualifying cohabitants would inherit in broadly the same way as spouses or civil partners under the intestacy rules.
Importantly, these proposals have not yet become law and the consultation does not propose extending the spouse exemption from Inheritance Tax or other tax advantages currently available to married couples and civil partners.
Real-life examples
These examples show how the current intestacy rules can affect cohabiting couples and their families.
Case Study: The Family Home
“We’ve lived in the same house for 12 years. Surely that means I’m protected?”
David and Marie have lived together for 12 years but never married or entered into a civil partnership because they are happy living as a couple and do not feel they need to.
The family home was purchased by Marie before they met and remains in her sole name. She also has investments worth £150,000 in her sole name. David and Marie never opened a joint bank account.
Marie dies unexpectedly without making a will.
David assumes he will inherit the house because they have shared it as their family home for many years. However, under the current intestacy rules, David has no automatic right to inherit Marie’s estate.
As Marie has no children, siblings, parents or grandparents, and all of her aunts and uncles have also passed away, her estate passes to her ten cousins, despite the fact that she has had little or no contact with them for many years.
David would need to reach an agreement with all ten cousins or consider making a claim against the estate. He would also have no automatic legal entitlement to Marie’s personal possessions, even items with significant sentimental value.
If the proposed reforms are introduced, they could provide greater protection for people in David’s position. However, making a will would still be the clearest way to ensure David would inherit Marie’s estate and personal belongings in accordance with her wishes.
Case Study: Second Relationships and Adult Children
“Mum’s new partner will be looked after, won’t he?”
Following a divorce, Margaret spends 18 happy years living with her new partner, Keith. They never marry because they have both been married before and do not feel the need to do so again.
Margaret has three adult children from her first marriage: Tom, Claire and Damien. Margaret assumes her children understand that she would want Keith to be financially secure if anything happened to her.
After their respective divorces, Margaret and Keith initially rented a property together. Keith paid most of the rent because he had a higher income. Ten years ago, Margaret inherited a house and investments worth approximately £50,000 under the terms of her late aunt’s will.
The couple decide to move into the property and spend many happy years there. They establish friendships in the local community, and Keith becomes an active member of a local bridge club.
Unfortunately, Margaret dies without making a will.
Under the current rules, Keith has no automatic right to inherit Margaret’s estate or remain living in the property simply because they lived together. Instead, Margaret’s estate passes to her children.
Although the children get on well with Keith, they view the property as part of their family heritage and decide they would prefer Damien and his children to live there. Shortly after Margaret’s funeral, they ask Keith to make arrangements to leave the property.
Keith becomes distressed by the situation and feels unable to face the prospect of making a legal claim against Margaret’s estate. Reluctantly, he moves away to live with his son.
If the proposed reforms are introduced, Keith may have greater protection and could potentially be entitled to inherit under the intestacy rules.
However, this example also demonstrates why a will remains so important. If Margaret had made a will, she could have balanced the interests of both Keith and her children. For example, she could have allowed Keith to remain living in the property during his lifetime whilst preserving its ultimate value for her children.
Why is making a will still important?
While the proposed reforms may provide greater protection for some cohabiting couples, intestacy rules can only ever provide a general legal framework.
A will allows you to make decisions based on your own circumstances and priorities. It can help you:
- Protect a partner or spouse
- Provide for children and grandchildren
- Balance the interests of a current partner and children from a previous relationship
- Decide who will administer your estate
- Reduce the risk of disputes after your death
- Support effective Inheritance Tax planning
- Protect vulnerable beneficiaries
- Ensure sentimental possessions pass to the people you choose
No matter what changes may be introduced in the future, a professionally prepared will remains the best way to ensure your wishes are carried out.
We’re here to help
If you are living with a partner and have not reviewed your will recently, now may be a good time to take advice.
Our Estate Planning team can advise on wills, inheritance planning and protecting those most important to you.
Contact our Estate Planning team today to discuss your circumstances.