Law reform for cohabitants on intestacy

In England and Wales, when someone dies without leaving a will, their estate is distributed according to the rules of intestacy which specify who is entitled to inherit the deceased’s money, property, and possessions. Many people assume that a long-term unmarried partner, sometimes called a “common law spouse”, will automatically inherit, but this is not the case under current law.

The “Fairer end to relationships” consultation closed in August and a statutory framework allowing eligible cohabiting couples to make financial claims on separation or death is likely – but no changes will take effect until at least 2028.

What are the rules of intestacy?

They are set out in the Administration of Estates Act 1925, and the order of entitlement is as follows:

1. Spouse or civil partner
2. Children (including adopted children, but not stepchildren unless legally adopted)
3. Other close relatives (e.g. parents, siblings, nieces, nephews)

Under these rules, unmarried partners have no automatic right to inherit. This is true regardless of how long the couple lived together or whether they shared children, property, or finances.

What does “common law partner” mean?

The term has no legal status here, so living together, sharing bills, or raising children together does not grant an unmarried partner any legal inheritance rights if there is no will.

What can an unmarried partner do?

1. Claim under the Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance Act 1975 allows certain people to make a financial claim against the estate if they believe they have not been adequately provided for. An unmarried partner can claim if:

• They lived with the deceased for at least two years immediately before the death as “husband and wife” or as “civil partners”.
• They were being maintained by the deceased (wholly or partly).

Any claim should be made within 6 months of probate/letters of administration.

2. Jointly owned assets

Some assets may pass outside the estate and intestacy rules. For example:

• Joint bank accounts: Money in a joint account usually passes automatically to the surviving account holder.
• Property: If a property is owned as “joint tenants”, the surviving partner automatically inherits the deceased’s share. If the property is owned as “tenants in common”, the deceased’s share passes according to the will or intestacy rules (not automatically to the surviving partner).

What happens to children and other relatives?

If there are children, the estate is usually divided between them. If there are no children, the estate may go to parents or other close relatives. An unmarried partner is not included unless they successfully make a claim under the 1975 Act.

Practical steps for unmarried couples

Given the current lack of automatic rights, unmarried couples are strongly advised to:

• Make a will: This is the most effective way to ensure your partner inherits what you want them to have.
• Consider joint ownership: Assets owned jointly can pass automatically to the surviving partner.
• Seek legal advice: Cohabitation agreements remain very important as a protective step until the law is changed.

If you are cohabitating and have questions or concerns about your rights, please contact Annabel Clark.