If your partner has died and you were not married, you may be in a worse position than you expect. You may also have a remedy that you do not know about. This article explains both, in plain terms.

There is no such thing as common law marriage

Many people believe that living together for long enough gives you the same rights as a married couple. It does not. As GOV.UK puts it, “common law marriages do not exist in England and Wales, even if you’ve lived together for a long time or have children”.

So if your partner died without a will, you do not automatically inherit. Anything you owned jointly, such as a home held as joint tenants or a joint bank account, passes to you automatically. But anything in your partner’s sole name passes under the intestacy rules to their relatives, starting with their children, not to you.

That is the hard part. Here is the part that helps.

What you can claim

Even though you do not inherit automatically, you may be able to apply to the court for provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975, usually just called the 1975 Act.

An unmarried partner has been able to bring this kind of claim only since the law was changed for deaths on or after 1 January 1996. To qualify as a cohabitant, you generally need to show that you were living with the deceased “as the husband or wife” (now read as living together as a couple) in the same household for at least the two years immediately before they died.

What you can actually get

This is where it is important to be honest. As an unmarried partner, the court can award you what is reasonable for your “maintenance”. That is a lower standard than a surviving husband or wife would get. A spouse can ask for a fair share of the wealth built up together. A cohabitant is limited to what they reasonably need.

But “maintenance” does not mean the bare minimum. The court looks at the lifestyle you actually shared, and where the facts justify it, the court may award you the home outright rather than just a right to live there for the rest of your life.

In one well known case, Thompson v Raggett in 2018, a woman who had lived with her partner for more than forty years was awarded the cottage outright, plus a lump sum for her care, even though almost the whole estate had been left to other people. Every case turns on its own facts, so this is not a guarantee, but it shows the claim can be a real and sometimes substantial remedy, not a token gesture.

Do you qualify? The courts take a sensible view

People often worry that a wobble in the relationship, or the fact that they kept a second home, will sink their claim. The courts take a realistic view rather than a mechanical one.

In Gully v Dix in 2004, a separation of around three months shortly before the death did not defeat a relationship that had lasted twenty-seven years. The court asks whether, looking at the relationship as a whole, a reasonable person would say you were living together as a couple. Illness, a spell in hospital or a care home, or keeping some independence does not automatically end that.

You need to act quickly

There is a strict time limit. A 1975 Act claim normally has to be brought within six months of the grant of probate. The court has a discretion to allow a late claim, but you should never rely on that. If you think you may have a claim, take advice early, while the option is still open.

Most claims settle without a trial

The cases named above reached a courtroom, but they are the exception, not the rule. The great majority of 1975 Act and inheritance disputes are settled out of court, without a judge ever deciding the outcome.

That usually happens through some form of alternative dispute resolution, often mediation, where both sides meet with a neutral mediator to negotiate a settlement, or a round table meeting between the parties and their solicitors. These methods are private, far quicker than a trial, and keep legal costs down for everyone involved. They also tend to be less bruising for a grieving family than fighting it out in public.

Settling early is almost always in everyone’s interest. A good contentious probate solicitor will push for a sensible negotiated outcome and treat a trial as the last resort, not the first move.

The law may change, but not yet

The Government has opened a consultation that could one day give unmarried partners automatic inheritance rights, which would be a significant improvement on the current position. We have written about it here. But it is only a proposal, similar reforms have been recommended and shelved before, and any change is years away if it comes at all. For now, your rights are governed by the law as it stands, so it is worth knowing where you stand today.

If your partner has died and you were not married, our specialist contentious probate team can tell you quickly and confidentially whether you have a claim, and will always look to settle without the stress and cost of a trial wherever possible. 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.