Ask most cohabiting couples whether they have legal rights if their partner dies, and the majority will say yes — they believe they have 'common law' rights after a certain number of years together. This belief is one of the most dangerous legal myths in England and Wales. Common law marriage does not exist. It has never existed in English law. However long you have lived together, however many children you have, however intertwined your finances — if your partner dies without a will, you inherit nothing automatically. This article explains the four myths, the real legal position, and the four things every cohabiting couple must do.
The Four Myths — Debunked
- Myth 1 — Common law marriage gives you rights after a certain number of years: False. Parliament has never recognised common law marriage in England and Wales. There is no threshold — two years, five years, or thirty years — after which cohabitation gives you automatic inheritance rights.
- Myth 2 — You automatically inherit if your partner dies: False. Under the intestacy rules (Administration of Estates Act 1925), only spouses, civil partners, and blood relatives inherit. A cohabiting partner of any duration receives nothing automatically.
- Myth 3 — The family home is safe: Not necessarily. If the home is in your partner's sole name, you have no automatic right to remain after their death. You could be required to leave.
- Myth 4 — The children will sort it out: Under intestacy, the children inherit everything — not the surviving partner. If the children are from a previous relationship, they may not choose to provide for you.
Cohabiting couples have the lowest protection of any family type under English law. There is no inter-partner IHT exemption (unlike married couples), no automatic inheritance right, and no guaranteed right to remain in the family home.
The Sarah and James Case Study: Zero Entitlement
Sarah (52) and James (55) have lived together for 14 years. They have one child together, Lily (16). James also has a son from a previous relationship, Oliver (24). The family home is in James's sole name — value £480,000, mortgage £90,000, equity £390,000. They have savings of £60,000. James's pension nomination has not been updated since his previous relationship. Neither has a will.
James Dies Without a Will: Sarah Receives Nothing
James's estate (£450,000 net) passes under the intestacy rules. Sarah receives nothing — she is not a spouse or civil partner. Lily and Oliver each inherit £225,000. Oliver, as an adult, can demand a forced sale of the family home to realise his share. Lily's share is frozen by the court until she turns 18. James's pension may go to his ex-partner if the nomination was never updated. Sarah's only legal remedy is a claim under the Inheritance Act 1975 — which takes 12 to 18 months, costs thousands of pounds in legal fees, and is not guaranteed to succeed.
With Wills and Proper Planning: Sarah Is Fully Protected
James's will leaves the family home to Sarah for life via a trust, then to Lily and Oliver equally. The savings (£60,000) pass to Sarah outright. James updates his pension nomination to Sarah. Both James and Sarah make Lasting Powers of Attorney. James's will also appoints a guardian for Lily. Sarah is secure in the family home for life. Lily and Oliver both receive their inheritance in due course.
What About the Inheritance Act 1975?
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people — including cohabiting partners who lived with the deceased for at least two years immediately before the death — to apply to court for reasonable financial provision from the estate. However, this is not an automatic right. It requires a court application, legal representation, and a judge's discretion. Claims take 12 to 18 months and cost thousands of pounds. The outcome is uncertain. It is a remedy of last resort — not a substitute for a will.
The IHT Disadvantage of Cohabitation
Married couples and civil partners benefit from an unlimited inter-spouse IHT exemption — transfers between them are completely free of inheritance tax, both during lifetime and on death. Cohabiting couples have no such exemption. If James leaves his estate to Sarah, IHT is charged at 40% on anything above the nil rate band of £325,000. On an estate of £450,000, that is £50,000 in IHT that a married couple would not pay.
Four Things Every Cohabiting Couple Must Do
- Make wills — both of you. A will is the only way to leave anything to a cohabiting partner. Without a will, your partner inherits nothing. This is the single most important step.
- Update pension nominations. Pensions do not pass by will — they are paid at the discretion of the pension trustees, guided by the nomination form. If your nomination names an ex-partner or is out of date, update it now.
- Sort the property. If the home is in one partner's sole name, consider putting it into joint names or using a Declaration of Trust to record each partner's beneficial interest. If it is already jointly owned, consider whether joint tenancy or tenants in common is the right structure.
- Consider marriage or civil partnership. Marriage gives unlimited IHT exemption, automatic inheritance rights under intestacy, and full legal protection. If you have been together for years and intend to stay together, the legal and financial case for formalising the relationship is compelling.
No will = no rights. A will costs a fraction of what a court claim under the Inheritance Act 1975 costs — and it gives certainty rather than uncertainty.