Common Law Marriage & Wills in the UK

The term “common law marriage” is often misunderstood in the UK. Many people believe that if they’ve lived with a partner for a long period of time, they automatically acquire similar legal rights to a married couple. However, this is not the case.

In fact, unmarried couples need to be aware that they don’t have the same inheritance rights as married couples or civil partners. This misconception can lead to serious consequences, especially when it comes to property, pensions, and inheritance.

In this post, we’ll address these myths and explain why it’s crucial to have a valid Will in place.

What Is Common Law Marriage in the UK?

First, it’s important to clarify that there is no such thing as “common law marriage” under UK law. The notion that cohabiting couples acquire legal rights by simply living together for a set number of years is false. 

Unlike married couples or civil partners, cohabiting couples do not automatically have the same legal rights or protections, especially in terms of inheritance.

What Rights Do Unmarried Partners Have?

If you’re living with a partner but aren’t married, it’s essential to understand your legal rights, particularly when it comes to inheritance. One common misconception is that, if one partner dies, the surviving partner will automatically inherit their estate, just like a married spouse. Unfortunately, this is not the case. 

If your partner passes away without a valid Will, the rules of intestacy will apply, and the estate will be divided among their children, parents, or other relatives, and not you.

Without a Will, unmarried partners have no entitlement to inherit their partner’s property or assets under UK law.

Does the Surviving Partner Inherit Property If They Aren’t Married?

If you and your partner jointly own a property, the way the property is held (either as joint tenants or tenants in common) will determine what happens if one of you dies.

• Joint Tenancy means that both partners own the property equally, and the surviving partner automatically inherits the deceased’s share.
• Tenancy in Common means each partner owns a specified share of the property, which may pass according to their Will. If one partner dies intestate (without a Will), their share will be inherited by their family, not their cohabiting partner.

If your name isn’t on the property deeds or mortgage, you may not have an automatic right to the property if your partner dies. However, if you’ve contributed to the mortgage or upkeep, you may be able to claim through equitable ownership.  

This is the right to benefit from a property, even if you don’t hold the legal title, although it can be a complicated and costly process.

Stack v Dowden [2007] is a landmark case in property law, where the House of Lords ruled on the division of property between cohabiting couples. The case involved a woman who was not listed on the property title but had made significant financial contributions. 

The court found that the contributions made by both partners created a shared intention to jointly own the property, even though the property was in one person’s name. 

Am I Entitled to My Partner’s Pensions and Inheritance If We Aren’t Married?

Pension rights are another area where unmarried couples can encounter difficulties. If your partner has a pension, you won’t automatically be entitled to receive survivor benefits unless you are named as a beneficiary. 

It’s vital to make arrangements in advance with the pension provider if you want to ensure that you’re entitled to these benefits.

Similarly, if you die without a Will, your partner will have no automatic right to your inheritance. Without a Will, your estate will be divided according to intestacy laws, which generally prioritise children, parents, or other family members over your partner.

Do Wills Become Invalid on Marriage?

One important aspect that can affect inheritance is the status of a Will when a couple gets married. If you marry after creating a Will, the Will is automatically revoked unless it explicitly states that it was made in contemplation of marriage. 

This means that any Will made prior to marriage will no longer be valid unless revised. 

It is therefore crucial to update your Will if you get married or enter a civil partnership, to ensure that your partner or loved ones are provided for in the event of your death.

Contesting a Will as an Unmarried Partner

In the unfortunate event that your partner’s Will does not include you as a beneficiary, you may be able to contest it. However, challenging a Will is a complex and expensive process, and success is not guaranteed. 

In some cases, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, if you were financially dependent on your partner. But again, this process is difficult, and there’s no certainty that you will inherit anything if your partner’s Will does not provide for you.

In Ilott v The Blue Cross [2017], the Supreme Court considered the provision for a daughter who was excluded from her mother’s Will. The court ruled that, under the Inheritance (Provision for Family and Dependants) Act 1975, the daughter was entitled to a portion of her mother’s estate despite the Will’s exclusion. 

Why You Need a Valid Will

The key takeaway for unmarried couples is that, without a Will, the rules of intestacy will apply and could leave your partner with nothing. 

Whether it’s a property, pension, or other assets, cohabiting couples have no automatic legal rights to inherit from each other. 

A well-drafted Will can provide peace of mind, ensuring that your partner is cared for and your estate is distributed as you wish.

Having a Will in place also avoids the potential for costly legal battles and uncertainty. If you’re an unmarried couple, it’s crucial to update your Will whenever there are significant changes in your life, such as buying a property or having children, to ensure your partner’s interests are protected.

How ELM Legal Services Can Help

At ELM Legal Services, we understand the complexities that unmarried couples face when it comes to inheritance and property rights. Our experienced team is dedicated to helping you navigate these challenges, ensuring that your wishes are clearly expressed and legally upheld.

Whether you need assistance drafting a Will to protect your partner, ensuring your estate is distributed as you intend, or securing your assets in the event of unforeseen circumstances, we are here to provide expert legal guidance every step of the way.

Many unmarried couples mistakenly assume they have automatic inheritance rights, which can lead to significant legal complications for their loved ones. Taking the time to plan ahead with a legally binding Will can help prevent disputes and provide peace of mind for you and your partner.

Get in touch with us today to discuss how we can help protect your future. Call 0117 952 0698 or submit a free, no-obligation enquiry to ensure your estate and loved ones are safeguarded.