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Property entitlements

If you’re living with someone with a terminal illness, or were living with someone who has recently died, you may be worried about whether you can carry on living in the same home. This article explains your property rights.

On this page:

Your right to stay on

If you shared a home with the person who died, your right to stay on depends on:

  • how you owned or rented the home
  • your relationship to the deceased

If you’re worried that you may lose your home, contact a solicitor, housing advice centre or Citizens Advice Bureau:

Find a solicitor

Call a housing advice helpline

Citizens Advice Bureau – to find your local branch

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Different ways to own property

There are two ways that a home can be jointly owned:

  • As tenants in common (called common owners in Scotland). Each owner has their own distinct share which doesn’t have to be equal. The share owned by the person who has died passes on according to the terms of the Will or intestacy rules.
  • As joint tenants (called joint owners in Scotland). The property is owned jointly and there are no distinct shares but each owner has equal rights to the property. When someone dies their interest automatically passes to the remaining owner(s) without becoming part of the estate (and so is outside the scope of the Will or intestacy rules). However, the value of the share that belonged to the person who died must still be included in the valuation of their estate for inheritance tax purposes. All interests are taken to be held in equal proportions for this purpose.

To check the intestacy rules, see the GOV.UK guide, What to do after a death  . In Scotland, see the Shelter   website. 

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A home you own ‒ married couples and civil partners

If you’re the husband, wife or civil partner of the person who’s died, the flowchart below outlines whether you may be entitled to the home, or at least a share of the home.

Most married couples and civil partners choose to own their home as joint tenants, in which case the share of the person who has died passes automatically to the survivor. If you don’t automatically inherit, speak to a solicitor or contact Shelter’s helpline (details above).

Your right to the home if you were married or in a civil partnership

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A home you own – unmarried couples

If you lived with the person who died but weren’t married, you’ll only inherit if your partner made a Will leaving the home or their share of it to you. You’ll have no automatic right to the home if it was in your partner’s sole name. You’ll have no automatic right to their share of it if you owned the property jointly as tenants in common either.

Even if you inherit under the Will, gifts between unmarried partners are not free from inheritance tax. Broadly speaking, if the estate of the person who died is worth more than £325,000, there could be inheritance tax to pay. If there isn’t enough money in the estate from other sources you might have to sell the home to pay the tax.

If your partner left the home or their share in it to someone else, or they hadn’t made a Will, you may still be able to go to court to claim a share of the estate. This might include a right to stay in the home. Contact a solicitor for advice (see above).

Where you owned the home jointly and the share of the person who died has now passed on to someone else, you and the new part-owner both have the right to live in and share the home. You should speak to a solicitor about your rights if this happens to you.

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What happens to the mortgage?

If the home was in your partner’s name or your joint names, check to see whether any life insurance policies were taken out when the mortgage was set up. If so, this may now pay off some or all of the remaining mortgage balance.

If the home was in your partner’s name and there’s no life cover, talk to the mortgage lender to find out if the mortgage can be transferred to you. This option will only be possible if you show that you now own part or all of the property.

It’s important to ensure that the mortgage continues to be paid, to avoid the mortgage company repossessing the home.

To find out more about paying for your home in Scotland, see Shelter Scotland  .

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If you are renting

If you’re renting jointly from a private landlord or local council, housing association or housing corporation and one of you dies, the other automatically has the right to continue renting the property.

If the tenancy agreement was in your partner’s sole name and they have died, the following people usually have the right to take over the tenancy (called a ‘succession’ right):

  • Husband, wife or civil partner
  • Unmarried partner

In some cases, other family members can take over the tenancy. For social housing in Scotland, this may also apply to a carer who lived with the tenant. There’s only one succession allowed, unless the tenancy agreement says otherwise.

If you’re renting privately you’ll need to consider whether you can afford the rent on your own. You might be able to sublet a room in your home or find a new joint tenant, but only if your landlord will agree to this. If you’re unsure of your rights or are being threatened with eviction, contact a housing advice centre or Citizens Advice Bureau – see external websites.

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Social housing

The rules for social housing tenancy are complex and differ between local councils and housing associations. You’ll need to check your own tenancy agreement or get advice from a housing adviser or solicitor. Broad guidelines are as follows:

Housing association tenants in England and Wales

If the tenancy began before 15 January 1989

A husband, wife, civil partner or unmarried partner, or other family member who lived with the person who died for at least a year, can usually take over the tenancy.

If the tenancy began on or after 15 January 1989

If you’re the partner, civil partner or cohabiting partner of the person who’s died, you can usually take over the tenancy. Your rights will be different if the person who died didn’t have an assured or secure tenancy. Family members can’t take over without permission from the landlord. You also need to meet the landlord’s normal rules for allocating housing. The tenancy can be passed on this way only once – so if the person who died had inherited the tenancy, it cannot now be passed on again.

Council tenants with a secure tenancy in England and Wales

If the tenancy began on or after 1 April 2012 (this only applies for England, not Wales)

Only a husband, wife, civil partner or unmarried partner – but not any other family member – can take over the tenancy. In some cases the tenancy can be passed on more than once.

If you don’t have a secure tenancy your rights will be affected. Contact a housing adviser or solicitor.

Scotland

If you rent from the council or a housing association, it’s likely you have a Scottish secure tenancy. This can usually be passed on to:

  • a husband, wife or civil partner
  • an unmarried partner or other family member who lived with the person who died for at least six months
  • a carer who had given up their own home to become a live-in carer

If the tenancy is a short Scottish secure tenancy, it cannot be passed on to anyone.

Northern Ireland

The tenancy may usually be passed on to:

  • a husband, wife or civil partner
  • an unmarried partner or other close family member who lived with the person who died for at least 12 months

But the tenancy can be passed on this way only once – so if the deceased had inherited the tenancy, it cannot now be passed on again.

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Lodgers

Often, you’ll be able to take in a lodger without the landlord’s permission, depending on the terms of the tenancy agreement. With permission, you may be able to sublet part of the home. You may also be able to arrange a transfer to a different home if a smaller one is available. You should get advice before you do this from a solicitor or housing adviser in England  Wales  Scotland   or Northern Ireland  .

If you’re a social housing tenant in England, Wales or Scotland and receiving Housing Benefit or help with housing costs through Universal Credit, your benefit may be reduced if you have more bedrooms in your home than you’re seen to need. Taking in a lodger or moving to a smaller home may be a way to cope with the under-occupancy penalty (often referred to as the ‘bedroom tax’).

The bedroom tax doesn’t currently apply to Northern Ireland, but it’s expected to be introduced in future. In Scotland, local councils are able to balance the effects of the tax by making additional Housing Benefits payments, funded by the UK government.

If you’re unsure of your rights, contact your landlord, a Shelter housing advice centre, or Citizens Advice – see the contacts below.

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External websites

 

Citizens Advice Bureau   – England and Wales

Citizens Advice Bureau   – Scotland

Citizens Advice Bureau   – Northern Ireland

GOV.uk   – Pension Tracing Service

HMRC   – capital gains tax

HMRC   – inheritance tax

Find a solicitor   – England and Wales

Find a solicitor   – Scotland

Find a solicitor   – Northern Ireland

Scottish Courts   – Small estates

GOV.uk   – what to do after a death (England and Wales)

GOV.uk   – what to do after a death (Scotland) 

NI Direct   – what to do when someone dies

Shelter England  

Shelter Scotland  


This page is for general information only. It's not intended to replace any advice from health or social care professionals. We suggest that you consult with a qualified professional about your individual circumstances. Read more about how our information is created and how it's used.

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