Introduction: a third attempt in fifteen years

On 5 June 2026 the Government opened a ten-week consultation, A Fairer End to Relationships, proposing that unmarried partners who have lived together for at least three years, or who share a child, should automatically inherit a share of the deceased’s estate where there is no will (Justice Secretary’s press release, 5 June 2026).

It is the third time in fifteen years that something close to this has been put on the table. The Law Commission proposed an opt-out scheme for cohabitants on separation in 2007 (Law Com No 307). A separate Law Commission report in 2011 (Law Com No 331) proposed bringing qualifying cohabitants into the intestacy rules. Neither was implemented. The 2026 consultation closes on 14 August.

The proposal matters because it would change who inherits in millions of British households. According to ONS data cited in Commons Library briefing SN03372, the number of cohabiting couples in the UK rose from around 1.5 million in 1996 to around 3.6 million in 2021, an increase of 144%.

The British Social Attitudes Survey has repeatedly found that approximately 46% of the population in England and Wales wrongly believes “common law marriage” gives them legal protection on death or separation. It does not, and never has: GOV.UK states plainly that “common law marriages do not exist in England and Wales, even if you’ve lived together for a long time or have children”.

The Women and Equalities Committee, in its 2022 report (HC 92), described the current law as “expensive, unclear, complicated and unfair”, noting that women, including women from ethnic minority backgrounds and those who had religious-only weddings, were the most exposed.

This article does three things: it sets out what the consultation actually proposes, traces the doctrinal lineage of the eligibility test, and draws lessons from five comparator jurisdictions that have already gone some way down this road. It is written from the position of a contentious probate firm that acts for both cohabitants and disinherited children, so the analysis tries to be even-handed about who stands to gain and who stands to lose.

The current position

The position today depends heavily on how the couple’s assets are owned. Assets held jointly, a home owned as joint tenants or a joint bank account, pass to the survivor automatically by survivorship. They fall outside the estate and are untouched by intestacy.

But assets in the deceased’s sole name, together with the deceased’s share of any property held as tenants in common, fall into the estate, and on intestacy they pass down a strict statutory order: to the deceased’s children first (adopted children ranking equally with biological children), or if there are none, to parents, then siblings, then more distant family. The unmarried partner takes none of that.

Their only remedy is to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975, and only if they meet the statutory definition of a cohabitant (broadly, living together “as the husband or wife” of the deceased for at least two years immediately before death). That route has existed only since the Law Reform (Succession) Act 1995 created it, for deaths on or after 1 January 1996.

A 1975 Act claim can also reach further than intestacy can. Where the deceased owned an asset jointly with someone else, the court has a limited power to treat the deceased’s share as if it had been severed and bring it into account, so even an asset that passed by survivorship is not always beyond reach.

The catch is the standard of the award. A surviving cohabitant is confined to “maintenance” under section 1(2)(b), a lower standard than the surviving spouse, who can be awarded a fair share whether or not it is needed for maintenance. That said, maintenance does not mean the bare minimum. The court measures it against the standard of living the couple actually enjoyed, and where the facts justify it the court may transfer the home to the survivor outright rather than give them only a right to live there for life. In Thompson v Raggett [2018] EWHC 688 (Ch), a partner of more than forty years was awarded the cottage outright plus a capital sum for her care, even though the estate had been left to other people.

The eligibility test, too, is applied with common sense rather than mechanically. In Gully v Dix [2004] EWCA Civ 139, a separation of around three months before death did not defeat a relationship of twenty-seven years.

But the route has hard limits, and a recent case shows how harsh they can be. In Matyas v Daniel [2026] EWHC 1368 (Ch), a surviving partner’s claim failed on four separate grounds, any one of which would have been enough: the relationship had not been openly lived and presented as a marriage, the will had already made reasonable provision, and the claim was brought years too late. Most fundamentally of all, the 1975 Act did not even apply, because the deceased was not domiciled in England and Wales. A partner of someone with strong overseas ties may have no remedy under the Act at all.

The point for the reform debate is this. The courts have read the 1975 Act about as flexibly as its words allow, but they cannot rewrite its hard edges, the domicile threshold, the two-year test, the maintenance ceiling, or the strict deadline, because those are fixed by statute. Only Parliament can do that. The 1975 Act route is also slow, expensive and contested, and the survivor is litigating against the deceased’s family, who have already taken the estate under the intestacy rules.

The Law Commission in 2007 considered, and rejected, bringing cohabitants within the intestacy rules. It recommended instead a separate financial relief scheme on separation, and limited reform of the 1975 Act on death. The 2011 report changed direction and recommended that qualifying cohabitants should inherit on intestacy without having to go to court.

The Inheritance and Trustees’ Powers Act 2014 implemented the non-cohabitant intestacy reforms from the 2011 report but specifically excluded the cohabitant provisions. The Women and Equalities Committee in 2022 recommended immediate implementation. The Government Response (HC 766, November 2022) declined. The 2026 consultation finally revisits the question.

What the consultation proposes

The headline proposal, in the Government’s own words, is that “bereaved unmarried partners will have automatic rights to inheritance if a partner dies without a will”. The same press release sets out the eligibility test: cohabitants “should have lived together for at least three years or share a child to access the framework”, and “courts must also be satisfied couples are in an enduring family relationship”. So there are two limbs:

1. cohabitation for at least three years, or a shared child; and
2. an “enduring family relationship” finding by the court.

The phrasing of point 2 is more significant than it looks. “Enduring family relationship” is not a new phrase. It comes directly from the Scottish Law Commission’s Report on Cohabitation (Scot Law Com No 261, 2022), which recommended replacing the section 25 definition of “cohabitant” in the Family Law (Scotland) Act 2006 with: “one of two persons who are (or were) living together as a couple in an enduring family relationship, aged 16 or over, not spouses or civil partners of each other, and not closely related”.

The SLC also proposed a non-exhaustive four-factor checklist for the court: duration of the relationship, whether the parties shared a residence, whether they were financially interdependent, and whether there was a child of the family.

The SLC in turn traced “enduring family relationship” to two pre-existing statutes: section 144(4)(b) of the Adoption and Children Act 2002 and section 29(3) of the Adoption and Children (Scotland) Act 2007. The phrase was originally drafted to identify couples (including unmarried ones) who could jointly apply to adopt a child.

So the phrase at the centre of the 2026 eligibility test is borrowed, via the Scottish Law Commission, from adoption law. That borrowing is sensible: the courts have spent nearly twenty years interpreting “enduring family relationship” in the adoption context, so there is a body of authority to draw on. But it is worth saying out loud, because the consultation does not advertise the lineage.

Comparative lessons

Other jurisdictions have already implemented some version of what the consultation now proposes. Their experience is instructive.

Scotland: our closest comparison

Scotland legislated for cohabitant rights in 2006. Section 29 of the Family Law (Scotland) Act 2006 allows a surviving cohabitant to apply for financial provision out of the deceased’s estate. The original deadline was six months from the date of death. There was no judicial discretion to extend it. In Kerr v Mangan [2014] CSIH 69, Lady Smith made clear that section 29 “does not, of itself, entitle the cohabitant to any part of the estate and it does not make a cohabitant a member of the class of persons upon whom intestate estate automatically devolves under Scots law”. Section 29 confers a power on the court, not a right.

The deadline has been the central practical problem. In a 2010 survey, 76% of Scottish solicitors identified time limits as a problematic feature of the Act. In Courtney’s Executors v Campbell [2016] CSOH 136, the Court of Session held that a cohabitant who missed the six-month deadline could not fall back on a common law claim for unjustified enrichment. Section 78 of the Trusts and Succession (Scotland) Act 2024 has now extended the deadline to twelve months and added a discretionary extension power, but the wider Scottish Law Commission reform (the report from which England has borrowed the “enduring family relationship” test) has not been enacted.

The Scottish experience offers two practical lessons for English reform. First, short and unforgiving deadlines do not sit well with bereavement: people who lose a partner rarely see a solicitor in the first month, often not in the first six. Second, a discretionary “may apply” scheme is not the same thing as an automatic share. The English proposal is the more radical option.

Ireland: the scheme rarely used

Ireland legislated in 2010 (the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010). A “qualified cohabitant” must show five years’ continuous cohabitation, or two years if there is a dependent child. There is no judicial discretion to waive the thresholds, and broken periods cannot be aggregated. Death cases are handled separately under section 194, which requires only that the relationship continued to death without any financial dependence requirement.

Despite the design effort, the regime is barely used. Research by Crowley (2023) in the Oxford International Journal of Law, Policy and the Family recorded only three cohabitant applications in the Irish High Court in 2021, against sixty-eight divorce or judicial separation applications. There are only eight reported judgments under the entire 2010 Act, of which one substantive separation claim (XY v ZW) was decided, and it failed. Crowley notes that practitioners describe the scheme as having “not resulted in even a trickle of new cases”. On the death side, DC v DR [2015] awarded a surviving cohabitant approximately 45% of the deceased’s estate under section 194, but the court rejected any rule of thumb percentage.

The Irish lesson is sobering. A carefully drafted statutory scheme can sit unused if the thresholds are too strict or the process too unfamiliar.

Brazil: full equalisation, and the disputes that followed

Brazil sits at the opposite pole. In May 2017, in RE 878,694/MG (Tema 809), the Federal Supreme Court (STF) held that the união estável (stable union) and marriage have the same legal value for inheritance, and struck down Civil Code article 1,790. The court gave the decision repercussão geral, binding on all lower courts and pending estates. Stable-union partners now inherit under article 1,829, the spousal regime.

That has not produced calm. Three areas of dispute have absorbed Brazilian courts since 2017.

First, the Superior Court of Justice (STJ) has had to pacify the question of how the surviving partner’s share is calculated in blended families. In REsp 1.368.123/SP (Segunda Seção, 2015) the STJ held that the surviving spouse concurs with descendants only on bens particulares (the deceased’s personal property, not the common pool acquired during the union).

In REsp 1.617.650/RS (Terceira Turma, 2019, Rapporteur Min. Paulo de Tarso Sanseverino) the same rule was extended to stable union partners. Brazilian academic commentary identifies three or four competing interpretations of how the calculation works in practice.

Second, the STF has had to rule on simultaneous unions. In December 2020, in RE 1045273 (Tema 529), the court held by a six to five majority that two simultaneous stable unions cannot be recognised even for survivor pension purposes. The case involved a Sergipe man who had a judicially recognised stable union with a woman (with whom he had a child) and a twelve-year same-sex relationship at the same time. The same-sex partner’s claim failed on monogamy grounds.

Third, the STJ has rejected the triação remedy (a three-way property division between spouse, parallel partner, and estate). In a judgment of 15 September 2022 (Terceira Turma, Rapporteur Min. Nancy Andrighi), the court held that a união estável simultaneous to a marriage cannot be recognised, even where the union preceded the marriage. The claimant had lived with the deceased for three years before he married another, then continued the relationship for twenty-five years. She lost.

The Brazilian lesson is that full equalisation does not end the disputes. It moves them onto when the relationship began and ended, what happens when there is more than one, and how the calculation works in blended families.

Quebec: the constitutional resistance

Quebec sits at a third pole. In Quebec (Attorney General) v A (2013 SCC 5), better known as the “Eric and Lola” case, the Supreme Court of Canada upheld Quebec’s regime denying de facto spouses both spousal support and property division rights on relationship breakdown. The vote was four to one to three, with Chief Justice McLachlin’s concurrence decisive. The majority’s reasoning, as Lavery’s case note records, was that “consent is the key to changing the legal framework”: imposing a marital property regime on people who had deliberately not married was, in the court’s view, a Charter misstep.

Quebec is the most striking counterweight to Brazil. Some couples do not marry precisely because they want different consequences. A statutory regime that overrides that choice has a real cost.

New Zealand: the election regime

New Zealand’s Property (Relationships) Act 1976 gives a surviving de facto partner of three years or more (or with a child) the right to elect between two options. Under Option B, the survivor takes whatever the will or intestacy provides. Under Option A, the survivor takes half the relationship property as if the relationship had ended at death.

The election is binary. Choosing Option A forfeits any benefit under the will or intestacy (section 61), and the executor bears the onus of rebutting the presumption that the deceased’s property is relationship property (section 81).

The New Zealand Law Commission’s 2018 Preferred Approach paper (IP44) found “a common theme in submissions and consultation meetings was the lack of understanding among the public and some practitioners about how the PRA applies on the death of a partner”, and recommended hiving death cases off to a separate succession statute. That recommendation has not yet been enacted.

Where the disputes will be

If the English reform proceeds, contentious probate work will gain at least five new fronts.

1. When did the cohabitation begin and end. The three-year clock starts when? When they moved in? When they bought a property together? Does separating to look after a sick parent for six months reset the clock? Does living separately during the last two years of a nursing home placement count?
2. Was the relationship “enduring” enough. The four-factor checklist (duration, shared residence, financial interdependence, child of the family) is the likely framework. Adult children of the deceased’s first marriage may challenge every factor.
3. Overlapping or successive relationships. Brazil’s experience suggests this is unavoidable. What happens when a separated but not divorced spouse and a long-term partner both have claims? The 2026 consultation will need to address it expressly.
4. The transitional cliff edge. Wills made before commencement, drafted on the assumption that an unmarried partner would be excluded by default, will still bite. But the partner’s position under the 1975 Act may strengthen if the statutory baseline has moved.
5. Further effects on 1975 Act claims. If cohabitants now inherit automatically, the existing 1975 Act route may shrink, overlap, or be reshaped. The interaction will take years to settle.

Who gains and who loses

The honest answer is that reform fixes one injustice and creates another. Cohabitants who would have been left with nothing on a partner’s intestacy will gain protection they currently lack. That includes long-term partners of many decades, second relationships where the deceased never remarried, and survivors of religious-only marriages with no civil registration. The Women and Equalities Committee was right to identify that group as disproportionately exposed under current law.

Adult children of first marriages, and the parents or siblings who take where a childless person dies, currently sit at the top of the intestacy order. In some cases they will lose out. The family home built up over forty years of a first marriage may now pass to a partner of three years. That is not necessarily wrong, but it is a real shift, and the people on the losing end of it will have an understandable grievance. A firm that acts in contested probate will be instructed by both sides of the line.

How likely is this, and when?

It would be a mistake to read the consultation as imminent law. It is the start of a long road, and the historical record suggests the road may not lead anywhere.

Begin with the precedent in this very area. The Law Commission recommended a financial remedies scheme for separating cohabitants in 2007 (Law Com No 307). On 6 March 2008 the Government deferred any decision pending research on the Scottish scheme, and in September 2011 declined to take it forward in that Parliament. As at the Law Commission’s 2024 to 2025 annual report, that 2007 report is still recorded as “Pending”, eighteen years after publication.

The 2011 intestacy report (Law Com No 331) recommended that qualifying cohabitants inherit on intestacy. The Government implemented the uncontroversial parts in the Inheritance and Trustees’ Powers Act 2014, but deliberately carved out and dropped the cohabitant provisions. Even that agreed, technical reform took about three years from report to coming into force, and it used the faster Parliamentary procedure reserved for Law Commission Bills that are not controversial. A cohabitation reform of the kind now proposed would not qualify for that fast track.

The wider record is sobering. Of 257 Law Commission reports since 1965, only about 63% have been implemented in whole or in part, which means roughly a third were never even partly enacted (Law Commission Annual Report 2024 to 2025). And the 12-week target for a government to respond to a consultation is not a legal duty; the Cabinet Office Consultation Principles 2018 state expressly that they do “not have legal force”.

There is a more pointed reason for caution here. As recently as November 2022, in its response to the Women and Equalities Committee, the Government formally rejected the recommendations to enact the 2007 scheme and the 2011 cohabitant intestacy reforms, saying it would “want to consult ahead of pursuing any reforms”. The 5 June 2026 consultation is that consultation. In other words, the Government is at the very beginning of the process it said in 2022 would be a precondition to reform, not at the end of it.

A realistic estimate, then, is several years at minimum if the reform proceeds at all, with a genuine and historically well evidenced risk of being deferred, watered down, or dropped. Anyone affected should plan on the law as it stands today, not on the proposal.

The constant

Across every jurisdiction and every reform attempt, one answer keeps emerging. A properly drafted will is the only way the deceased gets to (mostly) decide. Intestacy is what the state does in their absence. Testamentary freedom is not absolute in England and Wales, because the needs of family and dependants must also be considered, which is what the 1975 Act exists to do. But whatever the new English rules eventually look like, the people who lose out are almost always the ones whose loved one never made a will, or made one and never updated it.

If you have a partner you are not married to, the cheapest and most effective thing you can do, in either direction, is to make a will that reflects your actual intentions. If you are the adult child of a parent who has a partner they are not married to, you may need to talk to your parent about whether their will (if any) still does what they always said it would.

The consultation closes on 14 August 2026.

If you are concerned about how the proposed reforms may affect an existing estate plan, or if you suspect that a will or an intestacy distribution does not reflect what the deceased actually wanted, our specialist contentious probate team offers a free, no-obligation discussion of your circumstances. Many of our cases are funded on a genuine 100% No Win No Fee basis. Call 0161 515 7329 or request a callback through the Fifty Six Law website.

Article written and researched by Paul Wood FRSA

This content is for general informational purposes only, reflects the opinion of the author, and does not constitute legal advice or create a relationship of solicitor and client. For legal advice, please contact the specialist solicitors at Fifty Six Law.