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If the house is registered solely in the name of the person who has died, it forms part of their estate and must pass through either the will or the intestacy rules. A surviving spouse or civil partner has protections, but not the one most people expect: Family Law Act home rights end when the marriage ends, and death ends the marriage. The spouse does not automatically become the legal owner without a formal transfer. Probate is usually required before the title can be transferred into the surviving spouse's name.
It is surprisingly common for a family home to be registered in only one spouse's name — particularly where one partner bought the property before the marriage, or where conveyancing was handled without both names being added. When that person dies, the surviving spouse's position is more complicated than if they were a named co-owner. This guide explains the rights, protections, and practical steps involved in England and Wales; there is a note on Scotland and Northern Ireland at the end.
This part is widely got wrong, so it is worth being exact about it. The Family Law Act 1996 gives a married person or civil partner the right to occupy a property that was the matrimonial home even if they are not a legal owner. That is a home right, and it can be protected by a Home Rights Notice at HM Land Registry on form HR1 (there is no fee).
But section 30(8)(a) of the Act says home rights continue “only so long as the marriage or civil partnership subsists”. Death ends the marriage, so it ends the home right with it. The one exception is where a court made an order during the marriage under section 33(5) providing that the rights are not brought to an end by the death of the other spouse or civil partner — an order most couples will never have had reason to obtain.
The practical consequence: registering an HR1 after the death does not help, because there is no longer a home right to protect. If there is an existing home rights notice on the title, it will be cancelled once HM Land Registry is satisfied the marriage has ended.
What does protect a surviving spouse is different, and it comes from three places:
In the meantime, before the estate is settled:
Personal representatives hold the property on trust and cannot simply put a surviving spouse out on the pavement — removing an occupier still requires a possession order from the court. But that is a practical position, not a legal right to remain, and it is not the same protection the Family Law Act gave during the marriage.
Where there is a will
If the deceased left a valid will, the house passes to whoever is named in the will. In many cases, a spouse will have left the property to the other spouse — either directly or via a life interest trust. Where the will leaves the house to the surviving spouse outright, it will need to be transferred into the surviving spouse's name once probate is granted.
Where there is no will (intestacy)
Where the deceased did not leave a will, the intestacy rules under the Administration of Estates Act 1925 apply. For deaths in England and Wales from 26 July 2023:
The statutory legacy threshold of £322,000 is periodically reviewed by the Lord Chancellor and may increase over time. In most cases where the family home was the main asset, the surviving spouse will inherit it in full under intestacy — but the position is more complicated where there are children and the property value exceeds the threshold.
Where a property is in the sole name of the deceased, probate (or letters of administration where there is no will) is almost always required before Land Registry will register a transfer of title. There are no exceptions for spouses — unlike some jointly owned assets, a solely owned property cannot be transferred informally.
The probate process involves:
How long the grant takes varies. The most recent figures HMCTS has published put the average at just over four weeks from application to grant (December 2024), with digital applications averaging just over two weeks and paper applications under fifteen weeks; complex estates and those needing HMRC clearance take longer. During this time, the surviving spouse remains in occupation but cannot formally sell or remortgage the property.
In some cases — for example, where the will was made before the marriage, or where the deceased left the property to children or to a new partner — the surviving spouse may find that they are not entitled to the house under the terms of the will. In this situation, the surviving spouse has potential remedies.
The Inheritance (Provision for Family and Dependants) Act 1975 allows a surviving spouse, civil partner, or certain other dependants to apply to the court for reasonable financial provision from the estate if the will (or the intestacy rules) does not make adequate provision for them. The court has wide powers to award a lump sum, a periodic payment, or a transfer of specific property — including the right to remain in the family home.
The deadline is short, and it is the thing to know first: any application under the 1975 Act must be made within six months of the date the grant of probate or letters of administration is issued. The court can give permission for a late claim, but it will not do so as a matter of course. If a claim is a possibility, the six months is the clock that matters.
Children from a previous relationship:
A will that leaves the house to children from a previous relationship rather than to the surviving spouse is entirely valid in England and Wales — testamentary freedom allows this. However, the surviving spouse's 1975 Act claim is strong, particularly where the marriage was long, the spouse is elderly, and the house is their only home. Executors in this situation should be aware that distributing the estate without considering the surviving spouse's potential claim could expose them to personal liability.
Once probate has been granted and it is confirmed that the surviving spouse is entitled to the property, the transfer is completed as follows:
The Land Registry fee for an assent depends on the value of the property. An assent is a Scale 2 application: £45 for a property worth up to £100,000, £70 up to £200,000, £100 up to £500,000, £145 up to £1m and £305 above that, when lodged by post. Conveyancers lodging through the portal pay a reduced fee. The current figures are on the HM Land Registry fees page.
Receiving a property from a spouse's or civil partner's estate is free of Inheritance Tax, regardless of value, under the spouse exemption. There is also no Stamp Duty Land Tax on an assent from an estate to a beneficiary, because there is no chargeable consideration. Scotland charges Land and Buildings Transaction Tax and Wales charges Land Transaction Tax in place of SDLT, but an inheritance is not a chargeable acquisition under either.
Everything above is England and Wales. Both the protections and the inheritance rules differ elsewhere, so do not carry the figures across.
In Scotland, occupancy rights in the family home come from the Matrimonial Homes (Family Protection) (Scotland) Act 1981, not the Family Law Act 1996, and there is no Home Rights Notice at HM Land Registry — property is registered with Registers of Scotland. Scottish intestacy works quite differently: a surviving spouse or civil partner has prior rights in the family home and its contents, and legal rights in the moveable estate, before the rest is divided. There is no £322,000 statutory legacy, and the grant is confirmation rather than probate.
Northern Ireland has its own intestacy rules under the Administration of Estates Act (Northern Ireland) 1955, with a different statutory legacy, and its own land registration system. See nidirect rather than applying the figures on this page.