We Have Children Together — Doesn't That Give Me Rights?

No. Having children together gives you no claim on his estate. It is one of the hardest facts to take in during the days after a partner dies, because everything about your life said "family" — the surname the children carry, the years in the same house, the joint school run — and in law almost none of it counts. If you were not married and not in a civil partnership, you are not his next of kin, whatever the two of you built together.

The children inherit. You do not. Under the intestacy rules — the rules that decide who gets what when there is no will — a person's children inherit from them whether or not their parents ever married. But those same rules recognise only a spouse or a civil partner as the surviving partner, and a cohabiting partner, however long you were together and however many children you share, is simply not on the list.

"Common law wife" is not a legal status in the UK and never has been. So the money can pass to your two children and still leave you — the person raising them — with no legal interest in the home you all live in. That gap, between a family that plainly exists and a partner the law does not see, is the whole of this article.

The children inherit, and you do not

Start with what the intestacy rules actually do when there is no will. They set a fixed order of who inherits, and it does not bend to the facts of a particular family. A surviving husband, wife or civil partner comes first, taking a statutory legacy and a share of the rest, with the children taking what remains. Where there is no surviving spouse or civil partner, the children take the whole estate between them.

That is the trap for an unmarried couple. Because you were not married, there is no surviving spouse in the eyes of the rules — so your children inherit everything, including his share of the house, and you inherit nothing at all. It is not that you come lower down the order. You are not in the order. The people who end up owning his estate are your own children, and you are left holding no legal share of it while being the one who has to house and raise them.

gov.uk sets out this order in plain terms, and it is worth reading once so the shape of it is not a surprise: who inherits when someone dies without a will. Nowhere in it does a cohabiting partner appear.

Why "common law wife" is a myth

The phrase persists because it feels like it ought to be true. Decades together, children, a shared home, a shared name — surely that adds up to something the law recognises. It does not. There is no point at which living together converts into a marriage-like status for inheritance. Two years, ten years, twenty-five years: the answer on his estate is the same.

What makes it especially bitter is that the law is perfectly willing to treat you as a couple when it costs you money. The Department for Work and Pensions applies a "living together as a married couple" test to means-tested benefits and tax credits, so an unmarried partner's income and savings are counted exactly as a spouse's would be. You get the downside of being treated as married — reduced benefits — without the upside of inheritance or the spouse's inheritance tax exemption. We cover how that DWP test is actually applied, and challenged, in our piece on the evidence that wins a cohabitation reconsideration. The asymmetry is real: married for the purpose of taking support away, not married for the purpose of inheriting.

If the children inherit the house, can you stay in it?

Not as of right, and this is where the money reaching the children fails to solve the actual problem. If the children are under 18, they cannot legally own property in England and Wales, so their inheritance — including his share of the home — is held for them by trustees. Those trustees owe their duties to the children, not to you. If the estate needs cash to raise them, or if keeping an empty share of a house is not in their interests, the property can be sold or let. You would hold no legal interest in it to stop that.

Everything then turns on one thing most couples never check: how the home is owned. If you owned it together as joint tenants, his share passes to you automatically by survivorship, outside the estate and outside the intestacy rules — the one route that protects you. If you owned it as tenants in common, his share passes under the intestacy rules to the children, and you own the house alongside your own children's trustees. If the house was in his sole name, his whole share of it is the children's, and your position is weaker still. The label on the title deeds decides whether you keep your home, and it can usually be changed while both of you are alive.

The practical squeeze before any of this is resolved

Long before ownership is sorted out, there is the immediate problem of money you cannot reach. His sole bank account is frozen the moment the bank is told he has died, and it is released only to whoever administers the estate — which, with young children inheriting, is a slow process. Meanwhile the mortgage or rent falls due, the direct debits keep trying to leave a frozen account, and the bills do not pause for a bereavement.

An unmarried partner has no automatic right to step in and pay things from his money, and often ends up funding the whole household out of her own pocket for months while the estate grinds through. We set out that specific problem in what happens when a partner's sole account is frozen and the direct debits keep going. It is the gap that hurts first, before the larger question of the house is even reached.

What you can actually claim

There is one route, and it is worth knowing honestly rather than being sold as a safety net. A cohabiting partner who lived with the deceased as if a spouse for the whole of the two years immediately before the death can apply to the court for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. A claim normally has to be started within six months of the grant of representation, so it is time-limited as well as uncertain.

Understand what the claim is, though. It is not an inheritance. It is a request to a court to award you something out of an estate that has otherwise passed to other people — and in this situation, the other people are your own children. You would be bringing a claim against your children's inheritance, weighing legal costs and delay against a discretionary outcome the court is not obliged to give you. Some partners have no realistic alternative and are right to bring it. But it is a long way from the security a spouse gets automatically, and it is precisely why most families would far rather put cover in place than leave the survivor to litigate.

What actually fixes this

The good news is that the fix is ordinary and well within reach. It has four parts, and none of them requires getting married unless you want to.

First, make a will — each of you. A will lets him leave you his share of the home or a legacy outright, instead of letting the intestacy rules hand everything to the children. Wills matter even in the simplest households, as our piece on whether a married couple with no children needs one shows; for an unmarried couple with children they are not optional. Second, put life cover in place, written in trust, so it pays the survivor directly, outside the estate and without waiting for probate. Because the money is for you rather than the children, it can be sized to clear the mortgage or replace his income and keep the household standing. Family income benefit is a natural fit where the need is a steady replacement of what he earned, paying a monthly income until the youngest child is grown.

Third, check the title deeds and, if it helps, change how the home is owned so his share passes to you by survivorship. Fourth, make sure any pension has an up-to-date expression of wish naming you, because scheme death benefits are usually paid at the trustees' discretion and a blank or outdated form is a common way for money to go astray. If he is a company director, there is a further option worth knowing, set out in our piece on how a company can insure an unmarried partner through a relevant life policy. If you are engaged but not yet married, you are in the same exposed position until the day itself, which we cover in the months an engaged, cohabiting couple spend with no inheritance rights. When you are ready to price cover, you can get life insurance quotes and have an FCA-authorised broker set it up in trust from the start.

Scotland and Northern Ireland

The picture is not identical across the UK, and Scotland in particular is more generous to a surviving cohabitant. Under section 29 of the Family Law (Scotland) Act 2006, a surviving cohabitant can apply to the court for a discretionary payment from the estate of a partner who died without a will, though the application must be made within six months of the death and the award is at the court's discretion rather than guaranteed. Scots succession law also gives children their own protected "legal rights" in the estate. None of this makes a cohabitant a spouse, but it is a real difference from England and Wales.

In Northern Ireland the position broadly follows England and Wales: children inherit under the intestacy rules, and a surviving cohabitant has no automatic entitlement, though a dependant may be able to bring a claim under Northern Ireland's own family provision legislation. One further difference worth remembering: in Scotland children reach full legal capacity at sixteen rather than eighteen, so money held for them is held for a shorter period. This article is part of our guide to dependants and unusual family shapes, which covers the neighbouring situations in more detail. Free, independent guidance on wills and intestacy is available from Citizens Advice.

Frequently asked questions

Do we have rights as a couple because we have children together?

No. Children inherit from a parent under the intestacy rules whether or not the parents married. The surviving partner does not, because the statutory order recognises spouses and civil partners only. Having a family together, sharing a surname, or living together for decades makes no difference at all to your own position on his estate.

If the children inherit the house, can I stay in it?

Not as of right. Where the children are under 18, their share is held by trustees, who owe their duties to the children rather than to you. The property may have to be sold or let to fund their upbringing, and you would hold no legal interest in it — unless you owned the home together as joint tenants, in which case his share passes to you automatically.

What can I claim?

A cohabiting partner of at least two years can apply under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision, normally within six months of the grant. It is a court claim, discretionary in outcome, and in this situation it is a claim against your own children's inheritance — which is why most families would rather insure than rely on it.