The myth of common law spouse
The idea that a long-term unmarried partner acquires the same legal rights as a spouse is one of the most persistent and damaging misconceptions in English law. It is widely believed. It is completely wrong.
No matter how long you have lived together - five years, fifteen years, an entire adult life - English law does not recognise "common law marriage." An unmarried partner has no automatic right to inherit your estate, no automatic right to remain in your home, and no automatic right to your pension or life insurance unless you have explicitly nominated them.
Under the intestacy rules that apply when someone dies without a Will, an unmarried partner inherits nothing. Your estate passes to blood relatives - potentially people you have not spoken to in decades - while the person you lived with and loved may have no legal claim at all.
What happens in practice
The practical consequences depend on how your assets are held.
A jointly owned home
If you own your home jointly with your partner as joint tenants, the property passes to the surviving partner automatically on death - bypassing the Will and the intestacy rules entirely. This is one area where cohabiting couples can have automatic protection, but only if the property is held in this specific way. Many couples do not know how their property is held - and some who think they are joint tenants are actually tenants in common.
A property in one partner's sole name
If the property is in one partner's name only, the surviving partner has no automatic right to it whatsoever. Without a Will making an explicit gift of the property - or a beneficial interest established by contribution - the surviving partner could find themselves with no legal right to remain in the home they have shared for years.
Bank accounts, savings, and investments
Assets held in sole names pass according to the Will, or under the intestacy rules if there is no Will. Joint accounts pass to the surviving account holder. A cohabiting partner who is not named in the Will has no claim on a deceased partner's savings, investments, or personal property.
Joint tenancy versus tenants in common
The way you own your property together determines what happens to it when one of you dies - and most couples do not think about this carefully enough.
Joint tenants own the property together without defined shares. If one dies, their interest passes automatically to the survivor - this is called the right of survivorship. The Will has no effect on this. The property is not part of the deceased's estate for distribution purposes.
Tenants in common each own a defined share - typically 50/50, but it can be any split. When one dies, their share does not pass automatically to the survivor. Instead it forms part of their estate and passes according to their Will (or the intestacy rules if there is no Will). This is the structure that allows each partner to leave their share to their own children, for example.
Many couples are surprised to discover how their property is held. The Land Registry entry shows the title, but understanding the nature of ownership requires looking at the transfer deed and any deed of trust. If you are not certain, it is worth checking - the answer determines what happens to your home.
Children from previous relationships
Where either partner has children from a previous relationship, the complexity increases significantly. A cohabiting partner who dies without a Will leaves their estate to their children under the intestacy rules - potentially leaving the surviving partner with very little, even if the couple shared a home and a life for many years.
Conversely, a cohabiting partner who leaves everything to their current partner by Will may inadvertently cut out their own children from a previous relationship entirely. The competing interests of a surviving partner and children from earlier relationships require careful planning - usually involving trusts - to protect everyone fairly.
Inheritance tax between unmarried partners
Married couples and civil partners benefit from an unlimited spousal exemption for inheritance tax: assets passing between spouses on death are entirely free of IHT, regardless of value. Unmarried partners have no such exemption.
If one cohabiting partner leaves their estate to the other, inheritance tax may be due at 40% on anything above the nil-rate band - currently £325,000. On a Surrey property worth £600,000 held in sole name and left to a cohabiting partner, the IHT liability could exceed £100,000. This is a significant and often overlooked cost of not being married.
What good planning looks like for cohabiting couples
The legal position of cohabiting couples is weaker than most people realise - but it is not impossible to address. The following steps, taken together, create meaningful protection.
- Make Wills. The single most important step. A Will explicitly providing for your partner is the only way to ensure they inherit. Without one, the intestacy rules apply, and they receive nothing.
- Make Lasting Powers of Attorney. If you lose capacity, your partner has no automatic right to manage your finances or make decisions about your care. An LPA gives them that authority.
- Check how your property is held. Understand whether you are joint tenants or tenants in common - and consider whether that structure is right for your circumstances.
- Review pension nominations. Most pension funds are written in trust and do not form part of your estate. They are paid at the trustee's discretion, guided by your nomination. If your partner is not nominated, they may receive nothing from your pension.
- Consider life insurance in trust. A life insurance policy written in trust pays out directly to the named beneficiary without forming part of the estate - no probate, no delay, no IHT. For cohabiting couples, this can be a straightforward way to ensure immediate financial support for the surviving partner.
A note on marriage and existing Wills
If you are a cohabiting couple who subsequently marry, be aware that marriage automatically revokes any existing Will. A Will made before the marriage - even one that named your partner - is cancelled the moment you say the vows. Without making new Wills immediately after marriage, you are both intestate again.
This catches many couples by surprise. The fix is simple: make new Wills promptly after getting married. But the risk is real, and it applies regardless of how carefully you planned before the wedding.
The information in our guides is provided for general information only and is not a substitute for advice based on your individual circumstances.
Wills, trusts, inheritance tax, Lasting Powers of Attorney and estate planning can be complex, and the right approach will depend on your family, finances, assets and wishes. Laws, tax rules, allowances and guidance can also change over time.
You should not act, or decide not to act, solely on the basis of the information in these guides. Where appropriate, you should obtain personalised legal, financial or tax advice before making any decisions.
Reading a guide or completing the Family Risk Review does not create a client relationship with Prime Wills & Estate Planning.