Common law husband or wife


There is no such thing as a common law husband or wife. Many people are left in a difficult position following their partner’s death having relied on this fictitious concept.

If you have provided for your partner by making a will, and named them as a beneficiary, then it’s likely all will be fine and it doesn’t matter if you are not married or in a civil partnership. If you haven’t and you are not, then your property and possessions (your estate) will go to your family (parents, brothers, sisters or other close blood relatives) under rules laid down by the law, known as the rules of intestacy.

Your partner will have to rely on your family to agree to vary these rules to ensure that they are provided for. If an agreement cannot be reached, your partner will have to make a claim
under the Inheritance (Provision for Family and Dependents) Act 1975 to receive something.

This Act allows the court to make financial provision from the estate for those living as husband and wife with the deceased just before death and for those who were financially dependent on the deceased. However, the court will only award to the surviving partner what it considers a reasonable financial provision for their maintenance and so there is no guarantee that they will actually receive what the deceased would have wished them to have. 

The last thing that anyone grieving the loss of a loved one wants to deal with is an application to the court, with the cost and uncertainty involved, and for their opponents to be their late partner’s family. 

To avoid this situation, the best thing for all couples, regardless of your sexuality, is to make a will and keep it up to date. But if not, then the survivor should take legal advice as soon as possible because claims under the Inheritance (Provision for Family and Dependents) Act 1975 must be issued in court within 6 months of the grant of probate or letters of administration being made.

Our Contested Trusts and Probate Team at Birkett Long has experience in dealing with will and inheritance disputes. If you would like to find out more about how we can help you, please contact us on  01206 217395.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.