Common-Law Partners and Intestacy — Why You May Inherit Nothing

Common-law partners and intestacy is one of the most misunderstood areas of English family and succession law. The phrase common-law marriage has no legal meaning in England and Wales. There is no such thing as a common-law spouse. No matter how long two people have lived together, no matter how intertwined their finances, and no matter how many times they have been called a couple by friends and family, the intestacy rules give a cohabiting partner absolutely no right to inherit from their partner’s estate if that partner dies without a will. The Administration of Estates Act 1925 draws a bright line: only a legally married spouse or a civil partner inherits under the intestacy order. Everyone else, including the person who may have shared a bed, a home, and a life with the deceased for decades, is excluded.

The practical consequences can be catastrophic. Where the couple owned a home as joint tenants, the surviving partner will inherit the property by survivorship — but if they owned it as tenants in common, even the home may pass to the deceased’s children or parents instead. Bank accounts in the deceased’s sole name are frozen and distributed under the intestacy rules to relatives the surviving partner may barely know. And the surviving partner has no automatic right to remain in the family home while the estate is administered.

This guide explains the legal position for cohabiting partners, who actually inherits under the intestacy rules, what legal remedies are available to an excluded partner, and — most importantly — what practical steps can be taken now to prevent the situation arising. For the full intestacy picture, see our intestacy rules guide and for options if you have already been excluded, see our advice on contested wills and estate claims.

The Legal Position Under the Administration of Estates Act 1925

Section 46 of the Administration of Estates Act 1925 sets out the intestacy order and defines who qualifies as a spouse for this purpose: a person to whom the deceased was legally married or in a civil partnership with at the date of death. Cohabiting partners are not mentioned — not because Parliament forgot them, but because successive Parliaments have deliberately declined to extend automatic inheritance rights to unmarried couples despite repeated Law Commission recommendations to do so.

The position has not changed in this respect since 1925. The 2014 amendments to the Act significantly increased what a surviving spouse receives, but they did not alter the threshold question of who counts as a spouse at all. England and Wales lags behind Scotland in this regard: Scots law gives a cohabiting partner of three years or more a right to apply to court for a share of the intestate estate, though that right is limited and discretionary rather than automatic. No equivalent right exists south of the border.

Who Actually Inherits Under Intestacy When There Is a Surviving Partner?

Where a cohabiting couple are together at the date of death and the deceased had no will, the estate passes entirely to the deceased’s relatives in the statutory order: first to any children (including children from previous relationships who may be estranged), then to parents, siblings, and more distant relatives. If the couple had children together, those children inherit — but the surviving partner does not, and the children’s share is held on a statutory trust until they turn 18, not available to the surviving parent to meet their living costs.

In many cases, the result is that the deceased’s parents — who may have had little to do with the couple — inherit the entire estate, while the surviving partner of many years is left with nothing except what they personally owned. HMRC confirms the statutory order of priority on its page about who inherits if someone dies without a will.

The Inheritance Act 1975: The Surviving Partner’s Lifeline

The Inheritance (Provision for Family and Dependants) Act 1975 is the primary legal route available to a cohabiting partner who has been excluded under the intestacy rules. Under s.1(1)(ba) of the Act, a person who was living in the same household as the deceased as the deceased’s spouse or civil partner for the whole of the period of two years immediately before the death has standing to apply to the court for reasonable financial provision from the estate.

The two-year cohabitation requirement is strictly applied: the couple must have been living together, as if married, for two full years immediately before the date of death. Any break in cohabitation — including a separation, even if the couple later reconciled — can undermine the claim if it occurred in the two years before death. The application must be made to the High Court or county court within six months of the date on which letters of administration are granted, though the court has a discretion to extend time in exceptional circumstances.

What the Court Considers in an Inheritance Act Claim by a Cohabiting Partner

Under s.3 of the 1975 Act, the court considers a range of factors when assessing an Inheritance Act claim by a cohabiting partner. These include: the applicant’s financial resources and needs both now and in the foreseeable future; the needs and resources of any other beneficiaries; the obligations and responsibilities the deceased owed to the applicant; the size and nature of the estate; the applicant’s contribution to the welfare of the deceased’s family; and the duration of the relationship. For a surviving cohabiting partner, the standard of provision is not the higher matrimonial standard available to a spouse — it is limited to what is reasonably required for maintenance.

In practice, successful claims by cohabiting partners typically secure provision for housing (either a life interest in the home or a capital sum to purchase alternative accommodation), ongoing maintenance where the deceased was the main breadwinner, and recognition of the partner’s contributions to the family home and to the deceased’s care. Claims are expensive and uncertain, and the outcome depends heavily on the specific facts. Early specialist legal advice is essential — see our guide to estate administration for how the administration of the estate proceeds during a contested claim.

Practical Steps to Protect a Cohabiting Partner

The solution to the problem of intestacy and cohabiting partners is straightforward and inexpensive: make a will. A properly drafted will can leave the entire estate to a partner, create a life interest in the family home, or make any other provision the couple chooses. A will also allows the couple to appoint each other as executor and to name guardians for any minor children. A solicitor can draft a comprehensive will for a relatively modest fixed fee, which represents a tiny fraction of the cost of an Inheritance Act claim.

In addition, couples should consider: converting any tenants in common property to a joint tenancy (so the home passes by survivorship), ensuring that life insurance and pension death benefits are nominated to the partner (so they pass outside the estate entirely), and making lasting powers of attorney so that each partner can manage the other’s affairs if either loses capacity. These are the four pillars of financial protection for cohabiting couples under English law.

Written by Simon Jenkins, SRA 167489, Solicitor at Curtis Legal Limited (SRA 450129). If your partner has died without a will and you have been excluded from the estate, call freephone 0800 214 216 for a same-day callback.