I am often approached by people whose partners have died intestate, but who were not married. I am usually asked what their inheritance rights are as 'common law spouse’ when there is an intestacy. Sadly, I have to advise them that they have very few rights in that situation, and that they may have to go to Court to get anything at all. This comes as unwelcome news, particularly on top of bereavement.
It remains the case that (even after recent changes in intestacy law) if there is no will, then an unmarried partner will not automatically inherit anything. The situation for someone left in this position can be bleak - they have lost their partner, are often under threat of losing their home and may be left without sufficient income to meet all their bills. What can be done?
Firstly, it is worth checking the position in relation to any property held by the deceased. If it was held in the names of the deceased and their partner, then find out whether it was held as joint tenants or tenants in common. If they were joint tenants, then the property will pass automatically to the survivor, outside of the estate.
If they were tenants in common, then only the deceased's share of the property will fall into their estate. It may be possible to do a deal with those who will inherit under an intestacy that the surviving partner have a life interest in the other half of the property so that they do not have to move.
Secondly, there may be other assets which could benefit the partner - such as a death in service payment. The deceased may well have nominated their partner to benefit, and if not, it is possible to request the trustees of the scheme to exercise their discretion (although it can take a long time).
Thirdly, a cohabitant or someone who was maintained by the deceased can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision from the estate. This can take the form of a cash settlement (which might include provision for many years if not for life), periodical payments, or the transfer of property to give someone a place to live. Often housing is the most immediate need.
If money or housing is required urgently, then an application can be made to the Court for interim maintenance. This can be especially useful where possession proceedings have been threatened or issued (either because the mortgage on a property is no longer being paid, or because there are aggressive personal representatives).
If maintenance is awarded under the Inheritance Act, it is on the less generous standard - calculated according to what is reasonably necessary to meet maintenance needs (rather than the enhanced standard for spouses which is based on what is reasonable in all the circumstances, whether or not it is required for maintenance).
Unfortunately, the idea that a 'common law spouse' gets anything without a will is a myth. The only way to protect your partner on death without marrying them is to leave a will. We can advise cohabitants who have not been left anything, and our probate specialists will advise those who want to make a will.