It is a principle of the law in England and Wales that a person can leave their estate to whoever they so choose.
This however can sometimes lead to some unwelcome surprises for partners and spouses whose partners have sadly died, and they are left living in a property which is owned in that partner’s sole name.
This article will explore what rights unmarried and married couples have in this situation.
Unmarried couples
My partner has died, and we were not married. Am I entitled to anything?
You might be surprised to learn that you have no automatic rights as an unmarried partner and that ‘common law marriage’ is a myth.
In England and Wales, there is no legislation offering any protection to cohabiting couples, and our intestacy rules (which apply when a person dies without a Will) do not provide for unmarried partners. This means that if your unmarried partner does not specifically provide for you in their Will, you are not automatically entitled to anything from their estate.
Dealing with the loss of a partner is already incredibly difficult, but unfortunately it is becoming increasingly common that individuals are also left facing eviction from the home they have lived in with their partner for a number of years, because the property is registered in their late partner’s sole name.
My partner has died, and we were not married. Can I stay in their house?
If the property is registered in the sole name of your partner, the starting position is no, you do not have any automatic rights to stay in the property. Your partner’s executors or personal representatives will have a legal obligation to remove you from the property so it can be passed in accordance with your partner’s Will or the rules of intestacy (whichever apply).
If unfortunately your partner has already passed away, you may need to consider making a claim against their estate to secure financial provision (by way of a right to live in the property or a lump sum) to assist you in meeting your needs. This claim is a claim under the Inheritance (Provision for Family and Dependants) Act 1975, more commonly known as ‘The Inheritance Act’ or ‘The 1975 Act’.
Find out more by reading our article on estate claims by unmarried partners.
Can I recover my financial contributions to the property?
If you contributed financially or in monies worth to the property, you may be able to claim an interest in the property. This claim would be under the Trusts of Land and Appointment of Trustees Act 1996, known as ‘TOLATA’. You can read more about these claims here.
Married couples
Am I entitled to my spouse’s property if they die, and my name is not on the title of the property?
If you are married but the property is owned in your spouse’s sole name, the only way you will be entitled to the property is if your spouse has left it to you under their Will, or, if they do not have a Will, if you are entitled to it under the rules of intestacy.
It is important to bear in mind that the proportion of the estate that a spouse will receive under the intestacy rules depends on the value of the estate and the existence of other qualifying family members (such as children).
If your spouse has already passed away, you may need to consider making a claim against their estate to secure financial provision. Similar to unmarried couples, this claim can be made under the Inheritance (Provision for Family and Dependants) Act 1975. The level of award that a surviving spouse may receive is significantly greater than that of an unmarried partner. However, such claims must not be brought lightly and gathering sufficient evidence is essential.
For more information on spousal claims under the 1975 Act, and the requirements for a successful claim, please see here.
Pre-death planning
It is possible to avoid the requirement for forwarding the claims referred to in this article by effective pre-death planning, which includes the preparation of a Will and, in the case of unmarried couples, a Cohabitation Agreement.
Sadly, and all too often, we cannot predict when loved ones will pass away and this can come as a shock, so it is important to put in place the necessary documents as soon as possible to ensure you are both protected for the future.
If your partner has passed away and you believe you may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975, please do not hesitate to contact us on 0345 450 5558 or enquiries@stephens-scown.co.uk and one of our specialist legal advisors would be happy to discuss this with you.