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Common questions about unmarried couples’ rights after death

Common questions about unmarried couples’ rights after death

  • What happens if my partner dies and we’re not married?

    If your partner passes away and you are not married or in a civil partnership, there is no law that automatically benefits you unless your partner has a Last Will and Testament and has included you as a beneficiary within it.

    This means that if your partner dies without leaving a will, you have no automatic rights to benefit from pensions (including state pension), life insurance policies, and sometimes even property, depending on how it is owned.

    There are complex laws around property including intestacy rules and TOLATA. If you own a property as beneficial joint tenants, the property will automatically pass to the surviving owner(s) irrespective of the content of your will or your desire otherwise.

    In the case where the property is owned in your sole name or is owned as tenants in common, intestacy rules apply. This means that your estate will be shared equally between your children including illegitimate or adopted children but not step-children. If there are no children, the assets will be passed to other family members (parents, then the wider family if there are no living parents such as siblings or their issues, half-siblings or their issues, grandparents, aunts and uncles or their issues) and finally to the Crown. This is known as Bona Vacantia.

    It is best to seek legal advice as this can become incredibly complex very quickly. An expert family lawyer will be able to advise you on your entitlements. It may also be worth speaking to a Wills and Estate planner or a solicitor specialising in Wills and Trusts.

  • Joint Tenants vs Tenants in Common

    Joint tenants have equal rights to the entire property. If one person dies, the property automatically goes to the other owner(s). You cannot pass on your share of the property in your will.

    Tenants in Common can have different shares of the property and it does not automatically go to the other owner(s) upon the death of one party. Your share can be passed on through your will.

    You can change how a property is legally owned. People generally do this when they get married or get divorced. In the latter scenario, it is quite common to sever the tenancy i.e., change from joint tenants to tenants in common.

    If you are unsure about how you own your property, it is best to contact the Land Registry or discuss this with a solicitor.

  • What are laws around cohabitation and death?

    The key laws to be aware of are:

    Administration of Estates Act 1925 – more commonly known as intestacy rules

    Inheritance (Provisions for Family and Dependents) Act 1975 (often simply called 1975 Act) – contesting a will which leaves insufficient provision or contesting intestacy if a partner has passed away without leaving a will

    Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) – legislation that allows cohabiting couples who are going through separation to resolve property disputes.

    Lasting Power of Attorney

  • Should I make a will?

    Yes, you should absolutely make a will. If you are a cohabitee, this is very important as it will express your desires for your estate should you pass away.

  • Who is the next of kin if you are unmarried?

    Unlike married couples, or civil partners, unmarried couples are not automatically their partner’s next of kin.

    If you have children, whether from the current or a previous relationship, these will likely be your next of kin as per the intestacy rules. If there are no children, next of kin will pass to your next closest living relative, e.g. parents.

  • Am I entitled to anything if my partner dies?

    The law in England and Wales currently does not recognise cohabiting relationships in the same way as a marriage or civil partnership.

    This means that you are not automatically entitled to benefit from anything if your partner dies, particularly if there is no will expressing this, save for if your property is legally held in joint names as joint tenants. Assets, and sometimes property depending on legal ownership, will pass to children or the next closest living relative.

    If there are provisions for you in your partner’s will, this is different. You will benefit from whatever they have left for you, save for any property held as joint tenants with another person.

    Speak to a legal expert to get insight and advice on this.

  • Can an unmarried partner claim inheritance?

    If there is no will and you are unmarried, you are not automatically entitled to any inheritance.

    You may benefit from any jointly owned assets, including property if it was owned in both names, and life insurance if you are named specifically as a beneficiary.

    If there is no will, intestacy rules apply.

    However, under the 1975 Act, you may be able to make a claim or raise a dispute about provisions in your deceased partner’s will, providing you meet certain criteria.

  • What happens to my children if my partner dies and we are unmarried?

    The law is very clear that children’s welfare and wellbeing is paramount.

    Under intestacy rules, the children you have together (and any children the deceased had from previous relationships) will benefit from the division of assets if there is no will. Assets will be divided equally.

    If there is a will, children will benefit from whatever provision is made for them in the will. If there is insufficient provision, you may be able to contest this under the Inheritance (Provisions for Family and Dependents) Act 1975. However, this depends on numerous factors, so it is best to seek legal advice.

    Matters will also depend on whether the surviving parent has parental responsibility. Seek advice from a family lawyer if you are unsure as to whether you have parental responsibility, or you would like advice on how to obtain parental responsibility.

  • What is TOLATA?

    TOLATA is the Trust of Land and Appointment of Trustees Act 1996.

    It is a law used when a cohabiting relationship breaks down and there are disputes about the ownership of property or land. It gives the court power to resolve these disputes.

  • What protective measures can I put in place?

    If you are an unmarried couple and wish to put protective measures in place, it is best to first seek advice on your estate and property and to make a will.

Cohabitation Agreement

You can also have a Cohabitation Agreement drawn up. This can set out arrangements for finances, property, and children whilst you are living together and if you split up, become ill or die. It is a legal document providing that they are drafted and executed property as a deed. Your solicitor will advise you to go through full and frank disclosure prior to entering into a Cohabitation Agreement so they can advise you on the content so be prepared to disclose your financial position with supporting documentation.

We have expert family lawyers at Stowe who can assist you with a Cohabitation Agreement and clauses regarding death.

Declaration of Trust

The alternative is a Declaration of Trust. This is an agreement setting out the proportions in which a property is shared between an unmarried couple (or two or more people owning and sharing a house together). It is important that this declaration of trust is registered against the property, if possible.

A Cohabitation Agreement is usually more comprehensive than a Declaration of Trust.

Speak to a lawyer to understand which document is most appropriate for you.

Matthew is a Senior Associate and was noted in the Legal 500 for being ‘excellent’ and thinking ‘through cases very carefully to make very sound tactical decisions.’ His specialism is resolving financial issues following a divorce or separation and he frequently advises clients on cohabitation issues. He is based at our Liverpool office.

Date last reviewed: 26/06/2024


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