Cohabiting couples are the fastest-growing family type in the UK, yet many remain unaware of the significant legal gap that exists between their position and that of married couples or civil partners when one of them dies. The idea of common law marriage, the belief that living together for a period of time confers legal rights equivalent to marriage, is a myth in England and Wales. It has no basis in law. Understanding the reality of your position as a cohabiting couple is the first step towards protecting yourself and your partner adequately.

The Common Law Marriage Myth

In England and Wales, there is no legal concept of common law marriage. Regardless of how long you have lived together, how many children you have, or how intertwined your finances are, an unmarried partner has no automatic legal entitlement to inherit your estate if you die without a will. This is a common and serious misconception that leaves many cohabiting couples financially exposed.

The position is different in Scotland. Scottish law does provide some limited rights for cohabiting partners under the Family Law (Scotland) Act 2006, but these rights are significantly more restricted than those enjoyed by married couples and civil partners, and they do not extend to inheritance in the same straightforward way. Even in Scotland, cohabiting partners cannot assume they are automatically protected.

Intestacy Rules and Their Impact on Cohabiting Partners

The intestacy rules govern how a person’s estate is distributed when they die without a valid will. Under the intestacy rules that apply in England and Wales, a surviving unmarried partner inherits nothing from their deceased partner’s estate. The estate passes instead to the deceased’s children, and if there are no children, to other relatives such as parents or siblings, in a defined order of priority.

This means that if you die without a will and your partner is not married to you or in a civil partnership with you, they receive nothing from your estate by default. If you jointly own property with your partner and it is held as tenants in common rather than joint tenants, their share of the property does not pass automatically to your partner either. It passes according to your estate distribution, which under intestacy rules may mean it goes to relatives rather than the person you lived with and loved.

The practical consequences can be severe. A surviving cohabiting partner may find themselves unable to remain in the home they shared with the deceased, unable to access shared finances, and facing the grief of bereavement without any financial support from the estate.

Why Life Insurance Written in Trust Is Essential

Life insurance provides a mechanism to protect a cohabiting partner financially outside the estate, which is precisely why writing the policy in trust is so important for unmarried couples.

A life insurance policy that is not written in trust forms part of the deceased’s estate. Under the intestacy rules, if there is no will directing the estate to the surviving partner, that payout could pass to relatives rather than to the person you intended to benefit. Even with a will, the payout forms part of the estate, meaning it must go through probate before it can be distributed, which can take many months. It may also be subject to inheritance tax if the estate exceeds the relevant threshold.

By writing a life insurance policy in trust and naming your partner as the beneficiary, you direct the payout outside your estate entirely. It passes directly to your named beneficiary without going through probate, without being subject to the intestacy rules, and potentially without attracting inheritance tax. This is one of the most practical and effective steps a cohabiting couple can take to protect each other.

Nomination of Beneficiary Is Not Enough

Some people assume that nominating a beneficiary on a life insurance policy is sufficient to protect a cohabiting partner. This is not correct. A nomination is an expression of your wishes, but it does not have the same legal effect as a trust. Without a formal trust arrangement, the policy still forms part of your estate, and your wishes may be overridden by other legal claims or by the distribution requirements of the intestacy rules if there is no valid will.

A properly constituted trust removes the policy from your estate entirely. This is why a trust deed, not just a beneficiary nomination, is the appropriate mechanism for protecting a cohabiting partner through life insurance.

Writing a Will and Life Insurance Together

A will and life insurance written in trust work together to provide comprehensive protection. A will directs how your estate is distributed, ensuring your cohabiting partner receives what you intend. Life insurance in trust ensures a financial payout reaches your partner quickly, outside the estate, without waiting for probate.

Without both of these in place, a cohabiting partner is significantly exposed. You can compare life insurance options at TopQuote and speak to a specialist about how to structure cover for cohabiting couples effectively.

Frequently Asked Questions

Is there such a thing as common law marriage in England and Wales?

No. Common law marriage has no legal status in England and Wales. There is no point at which cohabiting together confers the legal rights of marriage or civil partnership. Cohabiting couples who wish to protect each other legally must take deliberate steps to do so, including making wills and writing life insurance in trust.

What happens to our jointly owned home if one of us dies without a will?

This depends on how the property is held. If you own the property as joint tenants, the surviving partner automatically inherits the deceased’s share through the right of survivorship, regardless of any will or intestacy rules. If you own as tenants in common, each partner owns a distinct share, and that share is distributed according to the will or, in its absence, the intestacy rules, meaning it may not pass to the surviving partner.

Do the intestacy rules apply differently in Scotland?

Yes. Scottish law provides cohabiting partners with some limited rights to make a financial claim on the estate under the Family Law (Scotland) Act 2006. However, these rights must be actively claimed within six months of the death, are at the court’s discretion, and are significantly more limited than the rights of a surviving spouse. Making a will and writing life insurance in trust remains essential for cohabiting couples in Scotland.

How do I write my life insurance in trust?

Most UK life insurers provide a trust deed that can be completed at the time the policy is taken out or at a later date. The process typically involves completing a form that identifies the trustees and beneficiaries and is signed in the presence of a witness. A broker can guide you through this process. For more complex arrangements, particularly where large sums are involved, taking legal advice from a solicitor specialising in trusts is advisable.

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About the Author

Tanweer Hussain is the editor at TopQuote.co.uk. He oversees the editorial accuracy of all published content, with a particular focus on the factual detail relevant to UK protection insurance. TopQuote is authorised and regulated by the Financial Conduct Authority.

This article is intended for general information purposes only and does not constitute financial advice. Your individual circumstances will affect which options may be available to you. TopQuote.co.uk is a comparison and information service, not a financial adviser. Always seek independent financial advice from a regulated adviser before making any financial decisions.