Cameron Miranda
The rights of a common-law partner in the event of their spouse's death vary depending on the jurisdiction. Intestacy laws do not recognize unmarried couples, so the surviving partner generally has no rights to their deceased partner's property. However, if the couple owned property as tenants-in-common, each partner owns a share equal to their contribution, which the surviving partner retains after the other's death. To secure rights to the other partner's share, the couple must have a state-recognized common-law marriage, or the surviving partner must be named as a beneficiary in the deceased's will or be designated as a trustee or personal representative.
Characteristics of claiming common law if your partner dies
| Characteristics | Values |
|---|---|
| Common-law marriage recognition | Depends on the state/country; nine states in the US recognize it, while Australia doesn't |
| Inheritance rights | Depends on the state laws; common-law partners may be able to claim inheritance |
| Property rights | Unmarried couples can receive a portion of the property if they hold it as joint tenants or tenants-in-common |
| Estate planning | Proper estate planning can protect both parties, regardless of marital status |
| Will | Common-law partners can inherit if named as beneficiaries in the deceased's will |
| Legal recognition | Common-law partners may be treated like married couples in some legal contexts |
| Children | Common-law partners can be designated as trustees or representatives for surviving minor children |
| Legal advice | Consulting a lawyer is recommended to understand specific rights and obligations |
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What You'll Learn
Inheritance rights
In other states, common-law partners may have fewer inheritance rights. Without a valid will in place, a common-law partner may not be entitled to any assets under the rules of intestacy. To secure inheritance rights, it is crucial for common-law partners to create a will that explicitly states their wishes for their partner to inherit their estate.
Unmarried couples, including common-law partners, can also acquire joint ownership of property as tenants-in-common or joint tenants. In such cases, each partner would be entitled to their share of the property after their partner's death. However, the deceased partner's share may be claimed as part of their estate and distributed according to their will or state intestacy laws.
It is important to note that inheritance laws can vary by state and country, and it is always advisable to consult with a family law attorney or a probate lawyer to understand your specific rights and options.
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$17.45
Joint ownership
In the event of the death of a common-law partner, there are very few legal rights that the surviving partner has. The surviving partner is not entitled to receive any of the deceased partner's assets unless they have been named as a beneficiary in their will. Therefore, it is important to make a will when in an unmarried partnership, to ensure that the surviving partner inherits as intended.
One way to ensure the surviving partner inherits is to establish joint ownership of assets. Joint ownership, or joint tenancy, is a legal arrangement where two or more people own a property together, each with equal rights and obligations. This can be between married or unmarried couples, business partners, friends, or family members. Joint tenancy with the right of survivorship means that when one joint tenant dies, their share of the property automatically transfers to the surviving tenant(s), bypassing the probate process. This can include real estate, bank accounts, vehicles, and investments.
To establish joint ownership, it is important to review property deeds, bank accounts, and other assets and retitle them in both parties' names. This can be done for most assets, including real estate, vehicles, and bank accounts. In the case of real estate, both parties' names should be on the deed. For bank accounts, both parties should be designated as account holders.
It is important to note that in the case of joint tenancy, the surviving tenant automatically inherits the deceased tenant's share of the property. However, this does not mean that the surviving tenant owns 100% of the property. The deceased tenant's share will be part of their estate and will be distributed according to the local laws of intestacy or their will. Therefore, it is possible that the surviving tenant's ownership percentage may be reduced if the deceased tenant's will leaves their share of the property to someone else.
An alternative to joint tenancy is tenancy in common (JTIC). This allows for percentage-based ownership, where each owner has distinct, separate, and transferable interests in the assets. Shares can be traded, and tenants can be added or removed throughout the arrangement's life. In the case of tenancy in common, the assets are distributed as stipulated in the decedent's will and local laws, rather than automatically passing to the surviving tenant(s).
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Common-law marriage recognition
If your common-law partner dies, you may be able to claim inheritance, but this depends on the laws in your state or country. Common-law marriage, also known as non-ceremonial marriage, is a marriage that results from an agreement between two people to consider themselves married, followed by cohabitation, rather than through a statutorily-defined process.
In the United States, all jurisdictions recognize common-law marriages that were validly contracted in the originating jurisdiction. Nine states and the District of Columbia recognize common-law marriages. Common-law spouses who meet their state's requirements are eligible for most of the financial benefits of a married couple, including Social Security. However, if the couple lives in a state that does not recognize common-law marriage, they cannot file joint tax returns with the IRS.
In the United Kingdom, the term "common-law marriage" is often used to refer to unmarried, cohabiting heterosexual couples. However, there are very few legal protections for these so-called common-law partnerships. While unmarried couples who buy real estate together can receive a portion of the property after their partner's death if they hold the property as joint tenants or tenants-in-common, they will not be entitled to any of their partner's assets unless they are specifically listed in their partner's will.
In Australia, the term used for relationships between any two persons who are not married but are living in certain domestic circumstances is a "de facto relationship." Since March 1, 2009, de facto relationships have been recognized in the Family Law Act (Commonwealth), applicable in states that have referred their jurisdiction on de facto couples to the Commonwealth's jurisdiction.
In some cases, you may need to petition the court to recognize your relationship as a marriage. This process can vary depending on your location, so it is essential to seek legal advice specific to your situation.
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Estate planning
In most jurisdictions, unmarried partners do not automatically have the legal right to inherit their deceased partner's property or assets. Instead, the estate will be distributed according to state laws, which typically follow a bloodline succession rather than a partnership. This means that in the absence of a will or estate plan, the deceased's assets and property will likely go to their surviving relatives, such as children or other blood family members.
To secure rights to a portion of the estate, the surviving common-law partner must ensure their partner has a valid will in place, stating their intention for their partner to inherit. This is especially important as common-law partnerships are not always recognized in the same way as legal marriages, and state definitions of "spouse" can vary. For example, in Canada, a "spouse" is defined as someone who has lived in a "marriage-like relationship" for at least one or two years, depending on the law in question.
Additionally, unmarried couples who own real estate together should consider how the property is held. If held as joint tenants or tenants-in-common, both partners may have a claim to a portion of the property after the death of one partner. However, it is important to understand that laws and regulations can vary from state to state or country to country.
To navigate these complexities, it is advisable to consult with a family or estate planning attorney. They can provide guidance on registering as a domestic partnership or civil union and assist in creating or updating estate planning documents, such as wills, powers of attorney, and healthcare directives. By taking these proactive steps, common-law partners can protect their rights and ensure their wishes are carried out in the event of their death.
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Legal rights
If you are in a common-law marriage and your partner dies, your legal rights will depend on the laws of your state or country. Common-law marriages are not legally recognised in some places, including Australia, and this will impact your entitlements.
In the US, there is no federally mandated guideline for how unmarried cohabitants are treated in the eyes of the law. However, nine states recognise common-law marriage, and in these states, you may be able to claim inheritance if your common-law spouse dies. You will need to check the specific laws in your state, as different states have different rules, regulations, and laws about partners' rights.
If your partner has left a will, you may be able to claim inheritance through that. If they have not left a will, you will not automatically receive any of their assets, and their estate will be distributed according to state intestacy laws. To ensure your rights are protected, it is important to have a will in place that states your wishes for your partner to inherit your estate.
If you have joint assets, such as bank accounts, you will be entitled to your share after your partner's death, but your partner's share may be claimed as part of their estate and passed down to surviving relatives. If you have jointly owned property, you will retain your share, but your partner's share will be part of their estate. If you are designated as a trustee or personal representative, you can oversee any trust funds for any surviving minor children until they come of age.
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Frequently asked questions
A common-law marriage is a legally-recognized marriage between two people who have lived together for a certain number of years and meet specific criteria, despite not being formally married.
As a common-law partner, you have very few legal rights if your spouse passes away. You won't be entitled to their assets unless you are named as a beneficiary in their will.
If your common-law spouse dies without a will, their estate will go to their surviving relatives. If they have no surviving relatives, everything will be passed to the Crown.
Yes, it is recommended that you consult a lawyer to understand your legal rights and any potential claims you may have.
You can ensure your common-law partner receives your property by creating a will or trust that specifically includes them. You can also consider joint tenancy with rights of survivorship, which allows assets to pass automatically to a surviving partner.
