19 Jul Until Death Do Us Part – Cohabitees And Intestacy

Posted at 00:00h in Family Law, Litigation by

What happens when there is no Will?

Cohabiting is the fastest growing family type in the UK. And just like the approach to cohabiting couples who have jointly held property, the law adopts a dramatically different approach to a bereaved cohabiting partner, compared to that of a surviving spouse or civil partner and regardless of the length of the relationship.

If your partner dies without leaving a valid Will (known as dying intestate), the legal Rules of Intestacy dictate who inherits. These rigid rules often exclude the person the deceased would most want to protect.

Intestacy rules for married and civil partnered couples

For a surviving spouse or civil partner, the Rules of Intestacy apply as follows:

  • If the deceased died without children – The surviving spouse or civil partner will receive their loved one’s entire estate.
  • If the deceased died leaving children – The surviving partner inherits:
    • All the personal possessions of the person who has died.
    • The first £322,000 of the estate (the statutory legacy, for deaths on or after 26 July 2023).
    • One half of the remaining estate. (The other half is divided between the children, grandchildren or great grandchildren).

These rules ensure the surviving legal partner is well provided for. However, they do not apply to cohabiting couples.

Cohabiting partners are not automatically entitled to assets

There remains a widely held, but dangerous, misconception that partners have automatic protection under ‘common law marriage’. The fact is, common law marriage does not exist in law in England and Wales.

If you are not married or in a civil partnership, you are not automatically entitled to your partner’s assets, regardless of how long you have lived together. In the absence of a formal Declaration of Trust, this includes the home you may have shared for many years.

Who inherits instead?

The Rules of Intestacy follow a strict statutory order which completely bypasses the surviving cohabiting partner:

  • Where there are no children – The deceased’s estate will pass to their immediate family, such as their parents, or their siblings, nephews, and nieces. The surviving partner is entitled to nothing.
  • Where there are children – The deceased’s entire estate passes to that child or children (to be held in trust until they turn 18). Again, the surviving partner is entitled to nothing.

What can you do to secure provision?

The process you must follow depends on whether you are planning for the future or need to bring a claim now.

Prevention is better than cure

By far the most effective and cost-efficient option is for you and your partner to instruct a solicitor to make a valid Will. If you do this, the Rules of Intestacy are overridden, and your wishes regarding who inherits and who manages the estate will be legally binding.

If your partner has already died intestate

If you find yourself in the difficult situation of having lost a cohabiting partner without a Will, your primary route for financial provision is to make an application under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A).

To qualify as an applicant under this Act, you must be able to prove that you were living with the deceased as husband and wife or as a civil partner for the two years immediately before their death.

The court will assess the claims of all parties, including any children, in deciding what constitutes reasonable financial provision for you.

  • Time pressure – There is a strict six-month limitation period for bringing an I(PFD)A claim, which runs from the date of the Grant of Probate or Letters of Administration. Urgent legal advice is essential.
  • Settlement – Because litigation of this nature is stressful and costly, we prioritise attempting settlement as soon as practicable. This often involves confidential mediation to negotiate an appropriate provision for you, saving time and expense.

For more information

Wills and estate planning – If you are cohabiting or considering it in the future, our team can assist you and your partner in drafting Wills and declarations of trust to ensure your assets are protected and pass to your chosen beneficiaries.

Contested probate claims – If you have lost a partner without a Will, our Civil Litigation Department can advise on how to proceed, whether by negotiation or through an urgent I(PFD)A 1975 claim to secure your financial future.

Watch our video: Cohabitation agreements, know your rights if you are living together

Read our article: What is a cohabitation agreement?

Listen to the podcast – Do cohabiting couples have any legal rights?

For legal advice 

  • Email info@hrjforemanlaws.co.uk
  • Call Hitchin, 01462 458711, Welwyn Garden City, 01707 887700, Old Harlow 01279 709 100.
  • Complete our contact form here

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