Living Together Could Get A Lot More Appealing Under Labour

"We’ve lived together for 20 years, and we’ve got two kids. She’ll get everything when I die. We don’t need to get married.” Followed invariably by: “I don’t need a Will, she’s my common law wife.” 

Words that unmarried men have been uttering for decades down the pub, and which make private client lawyers wince. The idea of a ‘common law’ husband or wife, who is treated as a spouse in other respects, might be easy to assume. But by not saying “I do”, unmarried couples miss out from inheriting under the intestacy laws, and benefiting from the spouse tax exemptions. The results can be a nasty surprise for the deceased’s family, and rubbing of hands at the Revenue.

In an ideal world, the potential legal traps for unmarried couples occupying properties together, whose relationships end through break-up or death, would be highlighted forcefully and repeatedly. But in real life, individuals are much more interested in getting on with the day-to-day than thinking about what might go wrong.

To try and counter such traps, the government has issued a consultation document called A Fairer End to Relationships? covering several key areas which arguably are not fit for purpose for couples in modern society. It’s open for consultation until 14 August 2026, and the topics covered include reforming the law of financial remedies on divorce, the law for cohabitants on separation, and finally the inheritance provision for cohabitants on death. The areas are closely linked, but as death is the event around which most private client work is focussed, this update deals with what would happen only if the final proposal were to be implemented.

At present, there is no automatic right for cohabitants to inherit assets on the death of a partner, which can lead to financial hardship and uncertainty for the survivor. A Will in the survivor’s favour would be a prudent precaution to take, or owning the property as joint tenants (meaning that on the first death, the survivor would automatically inherit the share of the asset owned by the first to die). But in their absence, an unmarried cohabitant whose name is not on the property title would have to apply for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). An expensive and time-consuming exercise, which might have an uncertain outcome.

The consultation proposes instead that cohabitants should inherit under the intestacy rules in the same way as a spouse or civil partner. Under intestacy, a spouse receives everything outright if there are no children of the deceased (and no wider family of the deceased would benefit). Otherwise, the spouse is limited to receiving all the personal belongings of the deceased, a legacy of £322,000, and 50% of what remains. The remaining 50% is divided among the deceased’s children.

To entirely align cohabitation with marriage for these purposes would be a massive step to take, and the consultation recognises that would go too far. Instead it proposes a model that would define a qualifying cohabitant as a person who has lived with the deceased for a minimum period. Five years cohabitation had previously been suggested by the Law Commission, which sounds like a reasonable starting point where the couple have not had children together. Where the cohabitants have a child together the minimum period has been mooted as two years.

Clearly, if a cohabitant stands to benefit from a deceased person’s estate in the same way as a spouse under intestacy, then this would have a serious effect on the deceased’s children whether from this relationship or previously. The onus to apply under the 1975 Act would then likely shift from the cohabitant to the deceased’s children. The minimum cohabitation period might help to prevent some children from being disinherited under the proposals but it may still be an unexpected shock to discover that your deceased parent’s wealth is passing predominantly to someone they've been living with for a relatively short period, and haven’t committed to marrying.

Minor measures such as extending the right to apply for a Grant of Letters of Administration (the intestate equivalent of the Grant or Probate) to cohabitants and extending eligibility under the 1975 Act to cohabitants with children have also been proposed.

The family law side of the proposals (not discussed above) are significant enough but, assuming these proposals in relation to private client work come in as envisaged or even in a modified form, they will raise all sorts of questions for clients and their lawyers. 

Anyone thinking of moving in with their partner must think carefully about the consequences of doing so. Staying together beyond the minimum cohabitation period just because it’s more “convenient” than splitting up could have drastic effects on children or the wider family. Records should be kept regarding when cohabitation began and, despite it being very unromantic, reviews should be carried out prior to the end of the minimum periods of occupation.

No mention has been made by government whether a cohabitant would also enjoy the same inheritance tax benefits as a spouse. The definition of cohabitant is likely to echo that under the 1975 Act, and would preclude cohabiting siblings, for example, claiming cohabiting rights to inherit under intestacy.

If these proposals could result, for your family, in assets passing to individuals who you might otherwise not intend to benefit, then the key point is to ensure that a Will is written or updated to avoid any ambiguity or unforeseen consequences. And, if you are considering making a gift to your child to help them on the property ladder, be mindful of who might move in with them…

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.