There is no such thing as a "common-law spouse" in English law. It's a myth - and it costs unmarried couples a great deal of money and stress when one of them dies without a will.
This article explains the legal reality, the financial consequences, and exactly what a cohabiting couple needs to put in place.
What "common-law spouse" actually means
Polling shows that around half of UK adults still believe that long-term cohabitation creates legal rights similar to marriage. It doesn't.
The Marriage Act 1949 is the source of marital rights in England and Wales. It defines marriage by ceremony and registration. Cohabitation - however long, however committed - confers none of the automatic rights of marriage, including:
- Inheritance under intestacy rules.
- Spouse exemption from inheritance tax.
- Right to occupy the family home on death.
- Automatic right to bereavement allowances or pension survivor benefits.
- Right to make medical or financial decisions for the partner.
What happens when a cohabiting partner dies without a will
If your partner dies intestate (no will), the estate passes under the intestacy rules. The order is:
- Spouse / civil partner.
- Children.
- Parents.
- Siblings.
- Other relatives in defined order.
A cohabiting partner is nowhere on this list. They inherit nothing automatically. Even after 30 years together, even with shared children, even with a jointly run business.
Your only routes if your partner dies intestate:
- The home is in joint names as joint tenants - it passes to you by survivorship outside the estate.
- The home is in joint names as tenants in common - your share is yours; your partner's share goes to whoever inherits under intestacy (usually their children or parents).
- The home is in your partner's sole name - you have no automatic right to it.
- You apply to court under the Inheritance (Provision for Family and Dependants) Act 1975 as a "person who was being maintained" or as a cohabitee of 2+ years. This is a court process, expensive and uncertain.
See our intestacy guide for the full intestacy hierarchy.
What about pensions and life insurance?
Pensions and life policies often pay out to a nominated beneficiary, bypassing the estate entirely. A cohabiting partner can be nominated but it isn't automatic - you have to fill in the forms.
Many cohabitees discover after their partner's death that the form was never filed, or was filed before the relationship started naming a parent or ex-spouse. Check this every few years - it's free and takes minutes.
What about the family home?
Your rights depend entirely on the legal ownership structure of the property:
- Sole name (yours) - it's yours.
- Sole name (partner's) - you have no automatic right to it. You may have a constructive trust claim if you contributed to the purchase or paid the mortgage, but it's a litigation exercise.
- Joint names, joint tenants - on death of one, the other automatically owns 100%. This is the simplest protective structure for cohabiting couples.
- Joint names, tenants in common - each owns a defined share. On death, your share is yours; theirs passes through their will or intestacy.
For most cohabiting couples buying a property together, joint tenants is the simplest survivorship arrangement - until you have children from previous relationships, in which case tenants in common with a will is usually safer (see our blended families guide).
What a cohabiting couple actually needs
The minimum legal hygiene for cohabitees with shared finances:
- Both have wills, naming each other as beneficiaries.
- Pension and life insurance nominations updated and on file.
- Property ownership structure understood - joint tenants vs tenants in common - and chosen deliberately.
- Lasting Powers of Attorney for each other (so each can act for the other if incapacitated). Without these, neither has a legal right to access the other's accounts or make medical decisions.
- Clear records of who owns what in the household, especially for valuable items.
Without a will, even if your partner had said clearly while alive that the house should be yours, what they said doesn't count. The intestacy rules do.
Inheritance tax for cohabitees
Married couples pass everything to each other tax-free under the spouse exemption, and the surviving spouse can use the deceased's unused nil-rate band - effectively getting up to £1m before IHT.
Cohabitees get none of that. Anything one cohabitee leaves the other is part of the estate for IHT purposes, taxed at 40% above £325,000 (or £500,000 with the residence nil-rate band, where it applies).
The financial difference can be enormous. A married couple with a £1m estate pays £0 IHT. A cohabiting couple in the same financial position pays up to £270,000.
For complex estates, we recommend you seek assistance from a Trusted Hands Advisor or your own legal advice.
Should we just get married?
For pure legal protection, yes. But marriage has its own implications - financial, emotional, and (in the case of one spouse already having children) inheritance complications. Many couples deliberately don't marry. The point of this article isn't to push marriage; it's to make sure cohabiting couples know that legal protection has to be put in place deliberately, because the law won't do it for them.
Civil partnership for opposite-sex couples
Since 2019, opposite-sex couples in England and Wales can enter a civil partnership as an alternative to marriage. The legal rights (inheritance, tax, pensions, decision-making) are essentially the same as marriage. For couples who don't want a wedding but do want the legal protection, civil partnership is the simplest route.
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Frequently asked questions
Can my partner of 20 years inherit my home if I die without a will?
Not automatically. If the home is in joint names as joint tenants, they get it by survivorship. Otherwise, they get nothing under intestacy and would have to make a 1975 Act court application.
How much can my cohabiting partner inherit before paying IHT?
£325,000 (the standard nil-rate band) - and the £175,000 residence nil-rate band can also apply if a home is passed to direct descendants, but not to the cohabiting partner themselves. There is no spouse-exemption equivalent.
What's a 1975 Act claim?
An application to court by certain categories of person (spouse, ex-spouse, child, dependant, cohabitee of 2+ years) for "reasonable provision" from an estate. The court has wide discretion and looks at the deceased's reasons, the applicant's needs, the size of the estate and competing claims.
Can I use joint accounts to avoid the issue?
Money in joint accounts passes to the survivor by survivorship. But large sums kept in joint accounts purely for inheritance avoidance can attract HMRC scrutiny. Use joint accounts for genuine joint expenses; rely on a will for the rest.
Should we set up Powers of Attorney?
Yes. A Lasting Power of Attorney (LPA) lets you appoint your partner to make medical or financial decisions for you if you lose capacity. Without LPAs, even your long-term partner has no automatic right to act on your behalf. The Office of the Public Guardian charges £82 per LPA in 2026.
Don't rely on the law to recognise your relationship - it doesn't. Start your will online and protect each other deliberately. Takes about 20 minutes; the alternative could cost your partner their home.
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