Losing a partner is a devastating experience. Navigating grief is difficult enough without the added stress and uncertainty of financial and legal matters. For couples who were not married or in a civil partnership, this uncertainty is particularly acute, as the law in England and Wales does not provide the safety net many people wrongly assume exists.
Many believe in the myth of common law marriage, assuming that after living together for a certain period, they automatically gain the same rights as a spouse. This is a dangerous myth. Without a valid will, your legal position can be precarious, affecting everything from your home to your financial security.
This comprehensive guide explains what happens if your partner dies without a will, the critical financial issues you will face, your potential options for making a claim, and the single most important step you can take to protect each other.
The “Common Law Marriage” myth: A critical misconception
It is crucial to understand that the term “common law husband or wife” has no legal standing in the context of inheritance in England and Wales. No matter how long you have lived together or whether you have children, you are treated as a separate individual in inheritance law. This can have profound and often heartbreaking consequences.
Understanding the rules of intestacy
When a person dies without making a valid will, their estate (their property, money, and possessions) is distributed according to a strict legal framework known as the “Rules of Intestacy.” These rules set out a clear hierarchy of who inherits, and an unmarried partner is not on the list.
Who inherits if there is no Will?
If your partner died without a will, their estate will be distributed in the following order:
- Children (including grandchildren if a child has already died)
- Parents
- Siblings
- Half-siblings
- Grandparents
- Aunts and Uncles
If no surviving relatives can be found, the entire estate passes to the Crown.
Who manages the estate? The role of the administrator
A critical point to understand is that the person who inherits is not necessarily the person who has the legal authority to manage the estate. The entire legal process of managing an estate is known as probate or estate administration, and to begin, a document called a ‘Grant of Letters of Administration’ is usually required. The right to apply for this grant follows the same hierarchy as above.
This means that your deceased partner’s parent, sibling, or adult child could be put in legal control of their finances, not you. They would be responsible for valuing the estate, paying any debts, and distributing the assets. This can lead to immediate practical problems and significant conflict, especially if your relationship with your partner’s family is strained.
What about jointly owned assets?
The main exception to the intestacy rules is assets owned as “joint tenants.” If you and your partner owned a property or bank account on this basis, the principle of survivorship applies. The asset automatically passes to you as the surviving owner. However, if you owned property as ‘tenants in common,’ your partner’s share does not automatically pass to you. A Declaration of Trust is a vital document in this situation to formally record each partner’s share. Without one, your partner’s share becomes part of their estate and will be distributed according to intestacy, leaving you vulnerable.
Your potential options as a surviving unmarried partner
If the intestacy rules leave you with nothing, it does not mean all is lost. You may be able to make a claim for “reasonable financial provision” from the estate.
Making a claim under the Inheritance (Provision for Family and Dependants) Act 1975
This Act allows certain people, including cohabiting partners, to make specific Inheritance Act claims if they have not been reasonably provided for. The court will consider your financial needs, the size of the estate, your age, the length of your relationship, and your contributions to the family.
It’s important to note that for a cohabitee, the law limits this provision to what is reasonably required for your ‘maintenance’. The outcome of any claim is highly dependent on the specific circumstances, as highlighted in this case study on the Inheritance Act.
Crucially, there is a strict time limit: you must issue your claim within six months of the date of the Grant of Probate. It is therefore essential to seek expert legal advice immediately.
Critical financial considerations you cannot ignore
Beyond the intestacy rules, unmarried partners face several other significant financial hurdles that spouses do not.
What about pensions and life insurance?
These assets often fall outside the estate. Many pension schemes and “death-in-service” benefits are paid out at the discretion of the pension trustees. The deceased can usually nominate a beneficiary by completing an “Expression of Wish” form. If your partner nominated you on this form, you may receive the payout directly, regardless of what any will says (or doesn’t say). Checking for these nomination forms should be a priority.
The inheritance tax disadvantage
Transfers of assets between spouses are exempt from Inheritance Tax (IHT). This powerful exemption does not apply to unmarried partners. If you inherit assets from your partner (either through a will or a successful claim), the estate could face a 40% tax bill on assets above the available tax-free thresholds. This can drastically reduce the value of what you receive and even force the sale of a family home to cover the tax liability.
What happens if we have children?
This is one of the most common and distressing scenarios, showing how having no will leaves young families vulnerable. It highlights the precarity of the surviving partner’s position and reinforces the absolute necessity of a will to grant a ‘right to occupy’ the property or place it in trust. Under intestacy, your shared children would inherit your partner’s estate, but if they are minors, the assets will be held in trust. If your partner had children from a previous relationship, they could become the legal owners of the home you live in, creating immense uncertainty.
The only true protection: why a will is essential
The emotional and financial turmoil described above can be completely avoided. The simplest and most effective way to ensure your partner is provided for is for both of you to create professionally drafted wills that clearly state your wishes.
A will allows you to:
- Completely override the Rules of Intestacy.
- Leave your home and other assets directly to your partner.
- Appoint executors you trust to manage your affairs.
- Engage in effective Inheritance Tax planning.
- Set out clear provisions for all children and appoint guardians.
- Prevent devastating family disputes and costly legal claims.
While a will is the ultimate protection upon death, couples can also set out their financial arrangements during their lifetime with legally drafted cohabitation agreements. Both documents are vital tools for securing your future.
How we can help
Losing a partner is an incredibly difficult time. Facing a complex and often unfair legal system on top of your grief can feel overwhelming. Our compassionate and expert team of solicitors are here to guide you.
Whether you need to understand your position, make a claim against an estate, or take the proactive step of writing a will to protect your family’s future, our Wills Trusts and Probate Team can provide clear, practical advice.
Do not leave your future to chance.
For a confidential discussion, contact our team today by calling us at 0161 930 5151, emailing us at enquiries@gorvins.com or by filling in the online form.