If you're not married or in a civil partnership and one of you dies without a Will, the other inherits nothing under the law, however long you've been together and even if you have children. There's no such thing as a "common law" husband or wife in England and Wales. A Will is the simplest way to make sure your partner is provided for.
Key Takeaways
- Without a Will, an unmarried partner gets nothing under the intestacy rules. Your estate goes to your children, or if you have none, to your parents, brothers and sisters.
- "Common law marriage" doesn't exist in England and Wales, however many years you've lived together.
- A partner left out can only go to court under the Inheritance Act 1975, which is slow, stressful and uncertain.
- How you own your home matters: a home owned as joint tenants passes to your partner automatically, but a share owned as tenants in common doesn't.
- Unmarried partners also get no inheritance tax exemption, so a Will on its own may not be the whole answer.
This guide covers England and Wales. Scotland and Northern Ireland have their own rules.
What happens if an unmarried partner dies without a Will?
The intestacy rules decide who inherits, and they only recognise husbands, wives, civil partners and blood relatives. An unmarried partner isn't on the list at all.
| Your situation | Who inherits without a Will |
|---|---|
| Unmarried, with children | Your children, in equal shares. Your partner gets nothing |
| Unmarried, no children | Your parents, or if they've died, your brothers and sisters. Your partner gets nothing |
| Unmarried, children from an earlier relationship only | Those children. Your partner, and any of their children you've brought up, get nothing |
If your children are under 18, their inheritance is held for them until they're 18, and then it's theirs outright. Your partner can't simply use it to keep the family home going. Read more about what happens if you die without a Will.
Isn't there "common law marriage"?
No. It's one of the most widespread myths in family law. However long you've lived together, whether you share a mortgage or have children together, you don't get the inheritance rights of a married couple.
As one of our team puts it: "You don't even consider that until it happens!" Couples often assume that years together, a shared home and children give them the same protection as marriage. Too often they only find out otherwise when one of them dies.
Can a partner claim anyway?
Possibly, but it isn't easy. If you'd lived together as a couple for at least two years immediately before the death, or your partner was financially dependent on you, they can ask the court for "reasonable financial provision" under the Inheritance (Provision for Family and Dependants) Act 1975. The claim must normally be made within six months of the grant of probate or letters of administration.
Even a successful claim usually only covers what the court thinks your partner needs for their maintenance, not what you'd have wanted them to have. And it can mean going to court against your own children or parents at the worst possible time. A Will avoids all of that.
What about our home?
That depends on how you own it, and a Will can't change it:
- Joint tenants: the whole home passes automatically to the survivor, whatever any Will says.
- Tenants in common: you each own a share. Your share passes under your Will, or under the intestacy rules if you haven't made one, so without a Will your partner could end up sharing the house with your children or parents.
- In one partner's name only: the home passes under the owner's Will, or under the intestacy rules if there's no Will. If the owner leaves everything to their own family, or dies without a Will, the surviving partner has no right to stay. They could be forced to leave the home and be left homeless. A Right to Reside Trust in the owner's Will can avoid this, by letting the partner stay in the home for a set time or for life before it passes to the owner's family.
Our guide to joint tenants or tenants in common explains how to check, and how to change it.
If you own the home together and each have children from earlier relationships, a Protective Property Trust in each of your Wills can let the survivor stay in the home while your own share is kept for your own children.
What should unmarried couples do?
- Make Wills. Mirror Wills suit most couples: you each leave everything to the other, then to the same people, such as your children.
- Check how you own your home. Make sure it matches what you want to happen.
- Name Guardians for your children. If you're an unmarried father, check you have parental responsibility, as only a parent with parental responsibility can appoint a Guardian. See what is a Testamentary Guardian?
- Update your pension and life insurance nominations. Death-in-service benefits and many pensions are paid according to a nomination form, not your Will. Make sure your partner is named.
- Think about inheritance tax. Unmarried partners don't get the tax-free transfer that married couples do. Our guide to inheritance tax for unmarried couples explains why that can matter.
- Make Lasting Powers of Attorney. Being someone's partner gives you no right to manage their money or make decisions about their care if they become ill. See the two types of LPA.
What if we get married later?
Marriage, or forming a civil partnership, automatically cancels any Will you made before, unless the Will says it was made in expectation of marrying that particular person (Wills Act 1837, section 18). If you're planning to marry, tell us when you make your Wills, or make new ones after the wedding.
Frequently asked questions
We've been together 20 years and have children. Does my partner really get nothing?
Yes, under the intestacy rules. Your children would inherit everything, and your partner would have to go to court to claim. A Will fixes this.
Do we need a solicitor to make Wills as an unmarried couple?
No. Most unmarried couples need straightforward Mirror Wills, which we can prepare and check for you. If your situation is more complex, for example a home in one name or children from earlier relationships, contact the Will Team and we'll talk it through.
Does a joint bank account go to my partner?
Usually, yes, but there are no guarantees: banks have been known to freeze joint accounts when one account holder dies. Joint accounts normally pass to the surviving account holder automatically. Accounts in your sole name pass under your Will.
What happens if we split up?
Separating doesn't cancel a Will if you're not married, so your former partner could still inherit. Make new Wills if you separate.
The short version: make Wills now
If you're not married, the law won't look after your partner for you. A Will takes minutes to make, and Mirror Wills for a couple cost just £79.99, checked by our Will Team. It's the single most important thing unmarried couples can do to protect each other.
About this guide
This guide was written and checked by the Downloadawill Will Team. It explains the law in general terms and isn't legal advice for your own situation. Downloadawill is a trading style of Direct Wills. All our Will Writers are Members of The Society of Will Writers. We've been writing Wills for people in England and Wales since 1997. Read more about us.
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