How much can a spouse inherit? Changes to the rules of intestacy

 25 August 2023
How much can a spouse inherit? Changes to the rules of intestacy

Back in July, the UK government made an important change to the law regarding intestacy under the snappily named “The Administration of Estates Act 1925 (Fixed Net Sum) Order 2023”. The change has raised the current statutory legacy in cases of intestacy from £270,000 to £322,000.

Rules of intestacy

The rules of intestacy lay down what happens if someone dies without leaving a valid Will, including who will inherit and who will be responsible for administering the estate. The statutory legacy is the amount of money any surviving spouse of civil partner and children can receive.

Many people assume that if they did die without leaving a will, their spouse will automatically inherit everything. They don’t, and the order of who receives what may come as a shock as a result.

Kids or no kids?

If you have no children, your whole estate will pass to your surviving, current spouse or civil partner.

If you have children, it gets more complicated. According to the Citizen Advice Bureau:

“If there are surviving children, grandchildren or great grandchildren of the person who died and the estate is valued at more than £322,000, the partner will inherit:

- all the personal property and belongings of the person who has died, and

- the first £322,000 of the estate, and

- half of the remaining estate.”

All your biological children can inherit the remaining half equally including those from any previous relationship. The rules also include provision for legally adopted children and adopted step-children.

Married or cohabiting?

The rules of intestacy are different If you are:

  • Not legally married


  • Had your civil partnership legally ended (dissolved)

In these cases, your ex-partner/ex-spouse will not inherit under the rules, as one UK law firm website explains:

“If you are cohabiting with your partner or view yourself as a ‘common law spouse/civil partner’, you still have no automatic right to inherit their Estate regardless of the time spent cohabiting with them, or even where you had children together.“

However, this doesn’t necessarily prevent any of your children from inheriting, as:

“A child whose parents are not married or have not registered a civil partnership can inherit from the estate of a parent who dies intestate. These children can also inherit from grandparents or great-grandparents who have died intestate.”

Making a Will solves all intestacy issues

If you have a valid Will at the time of your death, the rules of intestacy simply don’t apply. Your Will should lay out precisely who should inherit what, including property, assets, family heirlooms, and even pets. You will need to appoint at least one executor to administer your will on your demise, such as a trusted member of the family and /or a professional such as solicitor. For more information, see our Will Writing Service page.

Securing your Will against disputes

In theory, making a Will should ensure all the recipients understand your reasons for what they receive - or not. However, anyone can legally contest a Will if they believe they have a legitimate claim, although as the Legal and General website rightly points out:

“Whether or not you succeed is by no means guaranteed”.

For more details on the legal grounds of contesting a will, check our blog or this article from The Gazette.

Wills and divorce

Certain life events require you to create a new Will or change your existing one. Marriage is the most crucial; when you marry, any previous Wills are revoked (become invalid). However, the same doesn’t happen when you get divorced.

Divorce doesn’t revoke (cancel) your Will, but your ex-spouse cannot benefit from it. In effect, the divorce means that ex-spouses or civil partners are treated as if they have died in terms of your Will. However, that doesn’t mean you can’t leave them something in your revised or new post-divorce Will, and it shouldn’t affect the rights to inherit of any biological or adopted children (see above). It is always best to consult a family lawyer if you are in any doubt over the legal rights / status of your children.

Need help writing a new Will?

Contact us and talk to Paul Hammond, our resident will-writing specialist and a member of the Society of Will Writers.



IMPORTANT: This website article is intended for general information and does not constitute individual financial or legal advice in any way, and should not be relied on or treated as a substitute for specific professional advice.

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