My Unmarried Partner Died Without a Will: Can I Inherit, and What Do I Do Now?

The hard rule: you probably don't inherit

Let's start with the answer you came for, plainly. When someone dies without a will, their estate is distributed by their state's intestate succession laws. Those laws hand the estate to a fixed list of relatives, and an unmarried partner is not on it. You could have shared a home, raised kids, and merged your lives for thirty years. Under intestacy, you are still a legal stranger to the estate.

The order is similar across the country. Take California as a model. Under California Probate Code § 6402, when there's no surviving spouse the estate passes first to the decedent's children and their descendants, then to parents, then to siblings and their children, then to grandparents and their descendants, and only if no relatives can be found does it go (escheat) to the state. The Uniform Probate Code § 2-103, the model that many states follow, lays out the same chain: descendants, then parents, then descendants of parents, and so on. A partner never appears in either.

Three exceptions that can make you an heir

There are three, and only three, ways a surviving partner steps into heir-like rights. Read them carefully, because the details decide everything.

1. A registered domestic partnership or civil union, in a state that grants spousal inheritance. California is the cleanest example: under Family Code § 297.5, a surviving registered domestic partner is treated like a surviving spouse for intestacy, which means you inherit and can administer the estate. The catch is that the list of states offering this, and what each one grants, has shifted a lot. Several states (Connecticut, Vermont, and others) converted their civil unions into marriages and stopped registering new ones after nationwide marriage equality, while Colorado, Hawaii, Illinois, and New Jersey still maintain a separate status. Washington still has state-registered domestic partnerships, but for most couples only when one partner is 62 or older. Check your own state's current rules through the National Conference of State Legislatures' summary of civil union and domestic partnership statutes before you assume anything.

2. A valid common-law marriage. This is real, but narrower than people think, and we cover it in detail below. It is not created by cohabiting. It requires a genuine agreement to be married, living together, and presenting yourselves to the world as married, formed in one of the few states that still allow it.

3. You were named on a non-probate asset. This is the big one, and it does not depend on intestacy at all. If your partner named you on an account, a policy, or a deed, that asset can come to you no matter what the will says or doesn't say. That's the next section.

What still passes to you, will or no will

Here is the part most pages bury, and the part you most need. A surprising amount of what couples own does not travel through the will or through intestacy. It passes by its own rules, directly to the named or surviving owner, skipping probate completely. If your name is on any of the following, it is very likely yours:

• Property held in joint tenancy with right of survivorship. When one joint owner dies, the survivor automatically owns the whole thing. The will is irrelevant. (Note: tenancy by the entirety, a similar survivorship form, is generally limited to married couples, so it usually will not be available to an unmarried partner. Confirm how your deed actually reads.)
• Payable-on-death (POD) and transfer-on-death (TOD) accounts, and TOD deeds on real estate, that name you. The bank or county transfers it to you on proof of death.
• Life insurance where you are the named beneficiary. It pays you directly, outside the estate.
• Retirement accounts (401(k), IRA) where you are the named beneficiary. Same idea: the plan pays the beneficiary on file, not the heirs.

What to do now: a survivor's roadmap

If your partner just died, you don't need a law degree. You need a short list, in order. Here it is.

The shared home, and can you run the estate?

The house is usually the hardest part. If the home was titled only in your partner's name, you have no automatic right to stay. It becomes an estate asset, and it passes to the heirs (the children or parents), who may want to sell it. You could face a timeline to leave. The outcome is completely different if you were a joint owner with right of survivorship, in which case the home is simply yours.

On the mortgage: federal law (the Garn-St Germain Act, 12 U.S.C. § 1701j-3) stops a lender from calling a loan due when a home transfers to a relative of the borrower who dies. An unmarried partner is not a relative under that rule, so the protection does not automatically cover you unless you were already on the title. If you inherit equity through joint ownership, talk to the servicer about an assumption.

Can you be the estate administrator?

Maybe. States set a priority order for who gets appointed. California's is typical: under Probate Code § 8461, the surviving spouse or registered domestic partner comes first, then children, then grandchildren, then parents, then siblings, working outward, with "any other person" dead last. An unmarried partner falls into that last tier. But last is not never. If no family steps forward, or the family consents and waives, you can petition the court to serve. It's a real lever, especially when you're the person who actually knew your partner's affairs.

Social Security, wrongful death, and taxes

Three money questions decide a lot for a surviving partner, and almost no competing article touches them. Here they are, straight.

Social Security survivor benefits

You are very likely not eligible. The Social Security Administration limits survivor benefits to a surviving spouse, a surviving divorced spouse (10-year marriage), the worker's children, and dependent parents. An unmarried partner is not a category. Even the one-time $255 lump-sum death payment goes only to a qualifying spouse or child, not a partner. (One narrow path: SSA may recognize certain non-marital legal relationships, like some civil unions, as marriage-equivalent for benefits, so if you were registered, ask.)

Wrongful death lawsuits

If your partner died because of someone's negligence, in most states you usually cannot bring the wrongful death claim. The reason is technical and brutal: many statutes give standing only to "heirs," defined as the people who would inherit under intestacy, which leaves out an unmarried partner. Nevada spells this out: under NRS 41.085, an "heir" is someone who would inherit the decedent's property by intestate succession. Some states are broader, and a registered domestic partner or a financially dependent partner may have standing. This varies a lot, so if a claim is possible, ask a lawyer in your state quickly. Real money turns on it.

Taxes and stepped-up basis

If you do receive assets, two things matter. First, stepped-up basis. Property acquired from someone who died takes a new tax basis equal to its fair-market value on the date of death, under 26 U.S.C. § 1014, which can erase capital-gains tax on the appreciation during your partner's life. The non-spouse catch: for property the two of you held jointly, only the share your partner actually paid for steps up. (Between non-spouses, the law presumes the decedent owned the whole thing for estate purposes unless you can show what you contributed, per 26 U.S.C. § 2040.) For married couples there's an automatic 50% rule. For you, there isn't.

Second, which tax. Federal estate tax (paid by the estate) almost never applies, because the exemption is in the multi-millions, but there is no unlimited marital deduction for an unmarried partner the way there is for a spouse. Separately, a few states charge an inheritance tax (paid by the person receiving). Pennsylvania, for example, taxes transfers to an unmarried partner at 15%, its top rate for unrelated beneficiaries. Check whether your partner's state has one.

Common-law marriage and the state-by-state truth

"We were basically common-law married" is the theory people reach for, and it usually fails. A valid common-law marriage takes three things together: a present agreement to be married, living together, and holding yourselves out to the public as a married couple. Cohabitation alone is not it.

Only a handful of states let couples form a new common-law marriage today (the group commonly includes Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and Utah, plus the District of Columbia). Two are special. New Hampshire recognizes common-law marriage only for inheritance, and only after one partner has died, which is exactly the situation this page is about, so if you lived in New Hampshire it's worth a lawyer's look. And South Carolina abolished new common-law marriages on July 24, 2019, in Stone v. Thompson; only ones formed before that date still count. Plenty of out-of-date articles still list South Carolina as a current common-law state. They're wrong.

Five documents that prevent all of this

If you're reading this for your own relationship rather than in a crisis, this is the section that matters. Marriage isn't the only fix. Five documents do most of the work, and an unmarried couple can put them in place in a single afternoon with a lawyer:

1. A will that names each other. This is the document that overrides the intestacy default. Without it, the law's list wins.
2. A revocable living trust, if you want to keep assets out of probate and pass them privately.
3. Beneficiary, POD, and TOD designations on every account, policy, and (where allowed) deed. These are quiet, powerful, and free to set up.
4. A durable financial power of attorney, so you can manage money for each other if one of you is incapacitated.
5. A health-care directive and proxy. Without one, an unmarried partner often has no legal say in end-of-life care, and sometimes not even in funeral or burial decisions, which default to blood family. Naming each other fixes that.

And title key assets jointly while you're both alive. A jointly owned home with right of survivorship is the single most reliable way to make sure the survivor keeps the roof over their head.

When to get a lawyer

Some situations you can handle with a death certificate and a claim form. Others need a probate or estate attorney now, in the state where your partner lived. Get one if: there's real estate involved, the family is fighting or you expect a contest, you want to be appointed administrator, there may be a wrongful-death claim, or the estate is large or spread across multiple states.