Cohabiting Partners and Inheritance — Why You’re Not Automatically Protected

A damaging myth we meet in probate practice is that living together for a set number of years creates a “common-law marriage” with the same rights as marriage or civil partnership. It does not. In England and Wales there is no such thing as common-law marriage. However long you have shared a home, a mortgage or children, if one partner dies without a valid will, the survivor has no automatic right to inherit anything.

At Curtis Legal we have met too many bereaved cohabitants who assumed the law would protect them, only to find the estate passing to parents, siblings or estranged children under intestacy. The consequences are severe and almost always preventable with a few hours of planning.

This guide explains where cohabiting partners stand under intestacy, why the IHT position is harsher than for married couples, what the Inheritance (Provision for Family and Dependants) Act 1975 can and cannot do, and the practical steps every unmarried couple should take.

The common-law marriage myth

Surveys consistently show around half of adults in England and Wales believe common-law marriage exists as a legal status. It does not. No period of cohabitation, whether two years or fifty, converts a couple into spouses in law. The Law Commission has repeatedly recommended reform, most recently in its ongoing project on cohabitation rights, but Parliament has not yet legislated. Until it does, cohabitants remain in a legal vacuum on death.

The consequences flow through every part of the estate: who inherits, who administers it, what tax is paid, and what the survivor can claim. Each is significantly worse than for a spouse or civil partner, and no length of relationship cures the shortfall.

Intestacy rules pass everything to blood relatives

Where a person dies without a valid will, the statutory intestacy rules dictate who inherits. The order is fixed and unforgiving. A surviving spouse or civil partner takes a statutory legacy and a share of the residue. A surviving cohabitant takes nothing.

If the deceased had children, the entire estate passes to them regardless of whether they are also the survivor’s children or of the survivor’s needs. If there are none, it goes to the deceased’s parents, then siblings, then half-siblings, grandparents, and aunts and uncles. If there are no relatives at all, the estate passes to the Crown as bona vacantia. The cohabitant never appears in the list.

Our estate administration team regularly sees estates where an unmarried survivor is left dealing with a home they cannot afford to keep, joint bills they cannot meet, and in-laws they may barely know inheriting furniture, savings and pensions they helped build up.

No spouse exemption for inheritance tax

The inheritance tax position is arguably even harsher than the intestacy position. Transfers between spouses and civil partners are entirely exempt from IHT, but transfers between cohabitants are not. That single difference creates a series of expensive consequences.

First, the survivor pays inheritance tax at 40% on everything above the nil-rate band. The NRB is £325,000 in 2026, and it has been frozen at that level for many years. Second, there is no transferable nil-rate band. When a spouse dies, any unused portion of their NRB can be claimed by the survivor’s estate on the second death, potentially doubling the tax-free amount. Cohabitants have no such right. Each dies with only their own NRB available.

Third, the residence nil-rate band of £175,000, which shelters the family home when passed to direct descendants, is unlikely to help most cohabitants. It is available only for transfers to children, grandchildren or other lineal descendants of the deceased, not to a partner. If the deceased has no children and leaves the home to a cohabitant, no RNRB applies. Combined with the loss of transferable allowances, cohabiting couples can pay far more IHT than married couples on identical estates. Detailed guidance is available on GOV.UK and from our inheritance tax specialists.

The Inheritance Act 1975: standing, not certainty

The Inheritance (Provision for Family and Dependants) Act 1975 provides a limited safety net. Section 1(1)(ba) permits a claim by a person who, for at least two years immediately before the death, was living in the same household as the deceased as if they were a spouse or civil partner. That standing is important but it is not a guarantee of anything.

The court has a broad discretion to award reasonable financial provision, but for cohabitants that provision is limited to what is needed for maintenance, not the larger share that a spouse might receive. The claimant must prove cohabitation of the requisite kind, must issue proceedings within six months of the grant of representation, and must persuade the court to exercise its discretion in their favour after considering the size of the estate, the needs of other beneficiaries, the length and quality of the relationship, and any contributions to shared assets.

Litigation is stressful, slow and expensive. Our contested probate team often resolves 1975 Act claims by negotiated settlement, but the outcome is never certain, and the emotional cost of suing your deceased partner’s family in the middle of grief is substantial. The Act is a safety net, not a substitute for proper planning.

Jointly owned property: joint tenants vs tenants in common

Whether the family home passes to the survivor by survivorship depends entirely on how the property is legally owned. Joint tenants share the whole property equally, and on death the deceased’s interest passes automatically to the surviving joint tenant outside the will and outside the intestacy rules. This is the outcome most cohabiting couples assume they have. Many do not.

Tenants in common each own a distinct share, which can be equal or unequal, and that share forms part of the deceased’s estate on death. If the couple are tenants in common and there is no will, the deceased’s share passes under the intestacy rules to blood relatives. The survivor may find themselves co-owning the family home with in-laws or with a stepchild they have never met.

Every cohabiting couple should check the Land Registry title to see how the property is held, and consider whether the current position matches their intentions. Severing a joint tenancy or moving from tenants in common to joint tenants is straightforward, but it must be done deliberately and in writing.

Life insurance, pensions and expressions of wishes

Assets held outside the estate can be a lifeline for cohabitants because they bypass the intestacy rules entirely. A life insurance policy written in trust does not form part of the deceased’s estate and pays directly to the named beneficiaries. It is exempt from IHT and available quickly, often before probate is granted.

Occupational and personal pensions typically allow the member to nominate a beneficiary through an expression of wishes form. Trustees are not bound by that nomination but almost always follow it in practice. Without one, a cohabitant may receive nothing while a former spouse or estranged parent receives the death benefit. Reviewing and updating these forms annually is one of the highest-value tasks in cohabitant planning, and it takes minutes.

Cohabitation agreements, wills and LPAs

A cohabitation agreement records what each partner has contributed, what they own individually, what they own jointly, and what should happen on separation or death. It does not create marriage rights, but it provides evidence, prevents disputes and is invaluable in any subsequent 1975 Act claim.

Mirror wills are the single most important step. Each partner leaves what they wish to the other, with clear substitutional gifts if the survivor dies first. IHT planning can be built in, including gifts to children to use the NRB and RNRB efficiently on the first death. General information on wills is on GOV.UK, and our probate team can prepare tailored drafts within days.

Lasting powers of attorney should not be overlooked. Without an LPA, a partner has no automatic authority to make health or financial decisions if the other loses capacity. Family members, not the cohabitant, will be treated as next of kin. LPAs cost little and take a few weeks to register, and they protect the relationship while both partners are still alive.

Executor risk and applying for probate

Without a will there is no named executor. The right to apply for a grant of letters of administration follows the intestacy order, meaning a parent, adult child or sibling will be entitled to administer the estate, not the cohabitant. Our guide to executor duties explains the responsibilities that fall to whoever takes the grant.

From 13 July 2026, the probate application fee is £526 for estates over £5,000, regardless of value. That fee, together with valuations, IHT calculations and the six-month claim window under the 1975 Act, means administration of a cohabitant’s estate is rarely quick and rarely cheap. The single best thing a couple can do is make the survivor’s rights certain in advance.

How Curtis Legal can help

We advise cohabiting couples across England and Wales on wills, cohabitation agreements, property structuring, pension nominations, life policy trusts and lasting powers of attorney. Where a partner has already died without a will, our contested probate team advises on Inheritance Act claims, negotiates with the administrators and pursues litigation only when settlement is not achievable. Please call us on 0800 214 216 for a same-day callback with a probate solicitor. We will explain your options in plain English and give you a clear cost estimate before you commit to anything.