The number of unmarried couples has risen to 3.5 million, according to a recent report from the Office of National Statistics. However, not every unmarried couple understands their legal rights should one of them pass away. In this article, we explain the common myths and facts about intestacy rules for unmarried couples.
If there isn’t a valid will, the estate of the deceased will be dispersed under the rules of intestacy. These rules are regulated by the government. However, they do not recognise unmarried couples, including unmarried parents. In such a case, even when a couple has their own children, but they’re not married, the unmarried partner cannot automatically claim any part of the estate.
Intestacy rules follow a strict order on how the estate should be transferred. These rules include the closest relatives, but not cohabitating partners:
1. Spouse or civil partner
2. Children (including legally adopted ones, but not stepchildren)
3. Parents
4. Siblings
5. More distant relatives, such as grandparents, uncles, aunts, and so on
6. The Crown (under bona vacantia, meaning vacant goods). If there are no relatives, the entire estate passes to the Crown.
The Labour government pledged that the family law would be amended by adding rights for unmarried partners to inherit from each other’s death under the intestacy rules. But the consultation has not yet begun, and expectations are still quite vague on when this could be implemented. It’s still not clear how the possible law changes will consider cohabitation rules, as several sources have reported a two-year or even five-year cohabitation rule for the automatic inheritance claims.
It’s not uncommon to believe that common-law marriage has a legal standing. However, it’s also worth noting that in the UK there is no ‘common-law marriage’, and unmarried couples are treated as ‘cohabitating couples’ under the law, which essentially means that you live as ‘legal strangers’. In the UK, the legal status of marriage or civil partnership is the only relationship status that triggers automatic inheritance rights.
Suppose your unmarried partner dies intestate (without a valid will) and you were financially dependent on them. In that case, you may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 within six months of the grant of probate. For this to be valid:
1. The deceased should have died on or after 1 January 1996.
2. At the same time, the applicant must have been living in the same household as the deceased for at least two years, and their relationship should be akin to a marriage or civil partnership with the deceased.
Since 2005, the category has been extended to same-sex couples. However, such claims can be complex and may lead to a prolonged, costly court process. It’s worth mentioning that under this Act, the applicant can make a court claim for a reasonable financial provision from the deceased’s estate. This means such financial provision as would be reasonable in the circumstances for the surviving partner to receive for their maintenance. The court should determine the amount, but the surviving partner should not normally expect a generous payment.
Unlike a married partner, who has an automatic right, the unmarried partner must go to court and prove that their relationship was genuine and subsisting and that they have a need for financial provision. Such a legal process can be emotionally draining and expensive.
The property can be protected by the way the unmarried couple owns it.
If you and your partner own the property as joint tenants, the rule of survivorship applies. This can be the safest option for unmarried couples. When one joint tenant dies, their share of the property automatically passes to the surviving joint tenants, regardless of what a will or the intestacy rules say. The deceased’s share never enters their estate, protecting the surviving partner.
If you and your partner own the property as tenants in common, which means you each own an exact percentage share of the property, the deceased owner’s share does not automatically pass to another owner. Instead, their share of the property becomes a part of the personal estate and will be dealt with by the will or intestacy rules.
Children can inherit the whole estate of the deceased once they reach the age of 18. The intestacy rules prioritise the children, but still neglect the surviving partner.
A simple scenario is when an unmarried couple has children together. In such a case, the biological and legally adopted children of the unmarried couple would inherit the whole estate, and it may not significantly trigger any family issues. While the surviving partner might be the appointed trustee of the money and property on behalf of the minor children (those under 18), they are not the beneficiary. The surviving parent could be left with no access to joint savings or other personal assets needed to maintain themselves, as those assets legally belong to the children's trust.
However, if the deceased partner has children from a different relationship, the situation becomes even more fraught. These children, along with any from the current relationship, inherit according to the intestacy rules. This can leave the surviving unmarried partner in the difficult position of having to deal with children or stepchildren with whom they may have no relationship, who are now legal co-owners of their home (if owned as tenants in common). The risk of eviction is significant.
While Inheritance Tax (IHT) is a complex issue and needs to be assessed individually, there are several exemptions for married couples or civil partners. However, IHT provisions do not include the exemptions for unmarried partners, which means that any part of the deceased’s estate above the current nil-rate band (£325,000) will be taxed at 40%. It’s always better to seek advice from the specialists regarding IHT and probate planning. If you need to speak to someone about IHT you may benefit from a Which? Legal advice service membership.
The easiest and most guaranteed way to protect the estate for unmarried couples is to create a will. Making a will is the only way to ensure that your partner is financially secure and legally entitled to inherit the estate, as it overrides the rules of intestacy. A will allows you to clearly name your cohabitating partner as a beneficiary of your estate.
As an unmarried parent, a will is the only way to formally appoint guardians for your children should any partner die. The partner can also be appointed as an executor, who will be able to manage your estate. Your will creates the rules on how your estate should be passed to your unmarried partner and any other family members.
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