When someone dies without a valid Will in England and Wales, their estate is distributed under the rules of intestacy. Many families assume that everything automatically passes to a husband, wife or civil partner. That is not always the case.
Since 26th July 2023, the amount a surviving spouse or civil partner receives where there are children has increased from £270,000 to £322,000. This fixed sum is known as the statutory legacy.
This article is written by Ellie Dovey, a member of Waldrons’ Wills and Probate team. Ellie works across our offices in Birmingham, Merry Hill, Kingswinford, Dudley, Walsall, Worcester and Cheltenham, where she supports clients and colleagues with Wills, probate applications and estate administration.
In this piece, Ellie explains how the statutory legacy operates under the intestacy rules and why understanding these provisions is essential when planning your estate.
What is the statutory legacy?
The statutory legacy is set out under the intestacy rules and reviewed in line with legislation including the Inheritance and Trustees’ Powers Act 2014. The Lord Chancellor must review the level at least every five years.
Under the current rules in England and Wales:
- If someone dies without a Will and has no children, their spouse or civil partner receives the entire estate.
- If someone dies without a Will and has children, the spouse or civil partner receives:
- The first £322,000 of the estate (the statutory legacy)
- All personal possessions
- Half of the remaining estate.
- The other half of the remaining estate is divided equally between the children.
These rules are confirmed in official guidance from the UK Government: https://www.gov.uk/inherits-someone-dies-without-will
Why this matters for families
According to data from the Office for National Statistics, wealth tied up in property continues to form a significant proportion of family estates in England and Wales. In many parts of the West Midlands and Worcestershire, property values alone can exceed the statutory legacy.
This means that where there are children, part of the estate may pass directly to them rather than entirely to the surviving spouse. While that may sound straightforward, it can create practical and financial pressures, particularly if:
- The family home needs to be sold or refinanced
- Young children inherit funds outright at 18
- The surviving spouse needs full access to capital.
There is also a potential inheritance tax consideration. Assets passing between spouses or civil partners are generally exempt from inheritance tax. However, where part of the estate passes to children immediately, this can affect how allowances such as the nil rate band and residence nil rate band apply. Current thresholds are explained by HMRC here:
https://www.gov.uk/inheritance-tax
What about unmarried couples?
This is where many families are caught out. The intestacy rules do not recognise unmarried cohabiting partners, no matter how long they have lived together or whether they have children. Official government guidance makes this clear: https://www.gov.uk/make-will
If you are not married or in a civil partnership and you die without a Will, your partner is not automatically entitled to inherit. In many cases, they may receive nothing under the intestacy rules.
Claims may sometimes be brought under separate legislation, but that is stressful, costly and uncertain. Planning ahead is far simpler.
The bigger picture: why making a Will still matters
Recent reporting and industry commentary on the growing complexity of estates, highlights that more families now have blended relationships, second marriages and jointly owned property. Intestacy rules cannot reflect individual family dynamics.
A Will allows you to:
- Decide who inherits and in what shares
- Protect young or vulnerable beneficiaries
- Appoint guardians for children
- Structure inheritance tax planning
- Provide security for a surviving spouse or partner
Ellie often sees families assume everything will “just sort itself out”. The law is far more rigid than most expect.
Ellie highlights: “We regularly see the emotional and financial strain caused when someone dies without a Will. The intestacy rules are blunt instruments. They do not account for modern family life. Taking the time to plan properly can prevent avoidable disputes and protect the people you care about most.”
At Waldrons, our Wills and Probate team supports clients across Merry Hill, Dudley, Kingswinford, Walsall, Worcester and Cheltenham. We work closely with colleagues in our Family Law to ensure estates are structured in a way that reflects real family circumstances.
You can find out more about our Wills and Probate services here: https://www.waldrons.co.uk/wills-and-probate/
Take control of your estate planning
If you have children, own property or are in a long-term relationship, relying on intestacy rules is a risk.
Making a Will is the only way to ensure your estate passes in line with your wishes rather than a statutory formula. To speak to a member of our Wills and Probate team, please contact us: https://www.waldrons.co.uk/contact-us/
