The Law Commission has recommended that in certain circumstances, unmarried couples should have the same inheritance rights as spouses when a partner dies without making a will. 

The ‘common law wife’ is a widespread misconception; this concept has not existed since 1753 and unmarried couples do not have the same legal rights as spouses. 

Cohabitants’ legal position 

Cohabitation is widespread and increasing. According to the Office for National Statistics, the number of cohabiting couples in England and Wales will increase from 2.3 million in 2008 to 3.8 million in 2033. Yet the Law Commission has suggested that cohabitants are among the people least likely to have a will, meaning that surviving cohabitants are often left with nothing.

Unlike spouses, unmarried couples do not have an automatic entitlement to inherit when their partner dies intestate (without making a will). Their only option is to claim through the courts for reasonable financial provision. This table shows who can inherit when a partner dies without a will: 

When deceased has children

Spouse inherits:

  • first £250,000; 
  • personal possessions

(Balance to children equally)

Cohabitant inherits:

  • nothing - no automatic entitlement to inherit;
  • claim to the court.

When deceased has no children

Spouse inherits:

  • first £450,000; 
  • half of what remains

(Balance to other family members)

Cohabitant inherits:

  • Nothing - no automatic entitlement to inherit;
  • claim to the court.

The Law Commission’s recommendations 

To address the above, the Law Commission has recommended that when a person dies without a will, is not married to anybody else at the time of death, and has been cohabiting for five years prior to death, the surviving partner should have the same automatic inheritance rights as surviving spouses currently have. 

They have also recommended that if a person has been cohabiting for two years prior to death and has a child with the surviving partner then the surviving partner should have the same automatic inheritance rights that surviving spouses currently have.

These recommendations would go a long way in recognising that an increasing number of people are choosing not to marry and to cohabit instead. It remains to be seen whether the recommendations will be implemented but until then it is extremely important that cohabitants make wills to clearly record their wishes. This is currently the only way of ensuring that assets pass to the intended recipients. 

How to protect yourself 

The Law Commission's recommendations would go a long way in recognising that an increasing number of people are choosing not to marry and to cohabit instead. It remains to be seen whether the recommendations will be implemented but until then it is extremely important that cohabitants make wills to clearly record their wishes. This is currently the only way of ensuring that assets pass to the intended recipients.

About the author

Peter Lowe Partner

Peter is a family and divorce lawyer specialising in family and divorce law including ancillary financial issues and matters relating to children. Peter is a trained mediator and an accredited specialist with Resolution (Solicitors Family Law Association).