Do you need probate if your partner dies and you were not married?
The test for whether a grant is needed is the same. Everything else is harder: without a will, an unmarried partner has no right to inherit and no right to apply.
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The short answer
- Whether a grant is needed follows the assets, as for anyone: sole-name property or a sole-name account above the holder's limit means yes.
- Assets you held jointly as joint tenants pass to you automatically, whether or not you were married. The joint home, the joint account.
- Anything in your partner's sole name passes under their will. If there is no will, it passes to their relatives under the intestacy rules, not to you.
- Without a will you cannot apply for the grant. Your partner's children, parents or siblings are entitled instead.
- You may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you lived together for two years or were financially dependent. It has a six-month deadline from the grant.
There is no such thing as a common-law spouse in England and Wales. However long you lived together, however many children you had, if you were not married or in a civil partnership the law treats you as strangers for the purposes of inheritance. That has two consequences for probate: you may not be able to obtain the grant, and you may not receive what the grant releases.
What passes to you regardless
Survivorship does not depend on marriage. If you and your partner owned your home as joint tenants, it is yours from the moment of death; send the Land Registry form DJP with the death certificate. If you had a joint bank account, it continues as yours. A life policy written in trust for you, or a pension where your partner nominated you, is paid to you by the trustees or the scheme. Most pension schemes recognise an unmarried partner who was financially interdependent, and some pay a survivor's pension to a "qualifying partner" even without a nomination, though evidence of cohabitation is usually required.
If the home was held as tenants in common, your partner's share is part of their estate and passes under their will or intestacy. Without a will, you could find yourself co-owning your home with your partner's parents or children.
If your partner left no will
Under the intestacy rules an unmarried partner inherits nothing. Your partner's sole-name assets pass to their children if they had any (including children you had together), otherwise to their parents, then siblings, and so on. The people entitled to inherit are also the people entitled to apply for letters of administration. You are not on the list.
If a grant is needed, one of the entitled relatives must apply. Where the only relatives are your minor children, two adults apply on their behalf, and you would normally be one of them as their parent, but the assets are held for the children and are not yours. Where the entitled relatives are cooperative, they can renounce their right so that you can apply, or they can apply and then pass assets to you by a deed of variation.
The 1975 Act claim
The Inheritance (Provision for Family and Dependants) Act 1975 lets certain people ask the court for reasonable provision from an estate that leaves them nothing or too little. An unmarried partner qualifies if you lived together as if married for at least two years up to the death, or if you were being maintained by your partner. The court can order a lump sum, maintenance, or a transfer of property. Claims are made against the estate and must be started within six months of the grant of representation, so if a grant is applied for, the clock is running.
Claims are often settled without a hearing once the relatives understand the position, but you will need a solicitor. Legal aid is not available for them; some solicitors act on a no-win-no-fee basis for claims of substance.
If your partner left a will
Then everything above about intestacy falls away. The will decides who inherits, and if it names you as executor you can apply for the grant. Whether a grant is needed is decided by the assets in the usual way: see the checker. A will that leaves you the sole-name assets and names you as executor puts an unmarried partner in the same position as a spouse, with one difference: there is no spouse exemption from inheritance tax, so anything above the allowances is taxed at 40 per cent.
Practical matters
- Tenancy. A council or housing association tenancy in your partner's sole name may pass to you by succession if you lived there as their partner; ask the landlord promptly. A private tenancy depends on the agreement.
- Bereavement Support Payment is now available to unmarried partners with dependent children, following a change in the rules in 2023. Claim within 21 months of the death for the full amount.
- Your own will. If you have not made one, the same rules will apply to your partner if you die first.
Common questions
Does a partner need probate if not married?
Whether a grant is needed depends on the assets, not on marriage. What marriage changes is who can apply and who inherits. An unmarried partner can apply only if named as executor in a will. With no will, they cannot apply and do not inherit; the deceased's relatives do.
What is a common-law partner entitled to when their partner dies?
Nothing under the intestacy rules; there is no legal status of common-law spouse in England and Wales. An unmarried partner keeps assets held jointly as joint tenants, receives anything left to them in a will, and may claim reasonable provision under the Inheritance Act 1975 if they lived together for two years or were dependent.
Can an unmarried partner apply for letters of administration?
No. The right to apply follows the right to inherit under intestacy, and an unmarried partner has neither. The deceased's children, parents or siblings apply. They can renounce in the partner's favour if they agree, but they cannot be made to.
Does a joint house pass to an unmarried partner?
If it was held as joint tenants, yes, automatically, by survivorship, without a grant. If it was held as tenants in common, the deceased partner's share passes under their will or, with no will, to their relatives, and a grant is needed to deal with it.
How long does an unmarried partner have to make an Inheritance Act claim?
Six months from the date of the grant of representation. The court can allow a late claim but rarely does. If no grant has been taken out, the time has not started to run, but it is unwise to wait.
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Important
Solace is not a firm of solicitors and does not provide legal, tax or financial advice. We are an estate administration service and we are not regulated by the Solicitors Regulation Authority, the Financial Conduct Authority or any equivalent body. Nothing in this guide constitutes legal, tax or financial advice, and no solicitor–client relationship is created by reading it.
This article is general information only. It reflects the position in England and Wales at the date shown above; the law and the figures change, and Scotland and Northern Ireland differ in important respects. It may not apply to your circumstances. Whether a particular estate needs a grant is ultimately decided by the organisations holding the assets, and their limits change. Administering an estate carries personal legal responsibility, and you should obtain advice from a qualified solicitor, accountant or other regulated professional where appropriate. Always check current rates, fees and deadlines against GOV.UK before acting.