What rights do unmarried partners have after death?

Unmarried partners rights after death

In UK probate law, there's no legally defined terms for a ‘common law’ spouse or next-of-kin. Despite this, there remains a steady belief that an unmarried cohabiting partner is the next-of-kin and is therefore entitled to receive your estate on your death if you haven't written a will. This is not correct.

An unmarried couple who have had children together may believe they have a 'common law spouse' or 'common law next of kin'. Again, this is not correct. So, it's very important if you are living with an unmarried partner to consider the legal position of your estate on your death.

What happens if my partner dies without a will?

As the law doesn’t recognise ‘common law’ marriages or partnerships, there are very few rights an unmarried partner will have if their loved one dies without a will. They will have no automatic right to your estate, which instead will be distributed according to the rules of intestacy.

The rules of intestacy are a rigid set of legal rules which dictate who inherits your estate if you die without a will or if you have a will, but it is invalid. If you are unmarried your partner might receive no financial provision and everything you own could pass to your children, parents, brothers/sisters or distant relatives leaving your unmarried partner with the only option of making a costly and time-consuming inheritance claim against your estate.

You can avoid your estate following the intestacy rules by writing a will.

Who is next-of-kin if we’re not married?

The term ‘next-of-kin’ doesn’t have a legal definition in UK law and is determined based upon context. Generally speaking, your next-of-kin will be your closest living relative, spouse or civil partner.

For inheritance purposes, a spouse or civil partner would be the primary beneficiary of your estate. If you’re unmarried, however, there is an order of priority set out by the rules of intestacy that will determine who should inherit your estate.

The order of priority is:

• Children, including any legally adopted children (but excluding stepchildren unless legally adopted)
• Parents, if the person did not have any children
• Siblings, where there are no children or surviving parents
• Grandparents
• Aunts or uncles
• Distant relatives

Can an unmarried partner claim an inheritance?

While an unmarried partner has no automatic legal right to inherit from their partner’s estate after their passing, there are some circumstances in which they may be able to make a claim.

Under the Inheritance (Provision for Family and Dependants) Act 1975, it is possible for unmarried, cohabiting partners to make a claim against the estate of a partner who has passed away if it can be shown they were financially dependent upon them. For example, you may be able to make a claim if you have been out of work caring for your children and have been financially supported by your partner.

How can you protect your rights as an unmarried partner after death?

The easiest way to provide for an unmarried partner is to make a legally valid will that clearly states what you wish to leave to your partner in the event of your death. To guarantee your will is upheld, it is vital to ensure that the will is legally valid, so we strongly recommend you seek the assistance of a specialist.

Another way you can protect your partner’s rights is by drawing up a cohabitation agreement. While these agreements cannot set out what assets your partner has a right to if you pass away, it can set out how you expect ownership to be decided while you live together, including legal shares of property, how savings should be split, and custody of any family pets.

Protect your rights as an unmarried couple with a will

The best way to ensure that your partner receives the support and assets you want them to in the unfortunate circumstance of your passing is to draft a will that clearly sets out your wishes.

Even then, it’s important to remember that if a will has been poorly drafted, it can be contested and – if a court decides your will is not legally valid – any wishes you have set out could be overruled.

We strongly recommend, therefore, that you seek legal advice when drafting your will. Our wills solicitors have supported hundreds of clients in drafting and storing their will to ensure it represents your wishes and can be upheld in court, so you and your loved ones don’t need to worry.

Speak to us today on 0330 041 5869 or get in touch online to find out how we can help you.