Intestacy rules

If someone dies without making a valid will, they are classed as 'intestate' and will be left with no say over what happens to their wealth. Instead, their estate - which includes property, money, investments and other assets - is dealt with under the rules of intestacy.

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How do the intestacy rules work?

Under the rules of intestacy, the primary beneficiaries of the estate (those who are entitled to receive it) are married or civil partners and children. In the absence of any children, the surviving spouse or civil partner will inherit the entire estate. In the absence of a spouse or civil partner, the children will inherit the estate (in equal shares if there is more than one child). If there is a surviving spouse or civil partner and children:

  • The spouse or civil partner inherits all personal property, the first £250,000 of the estate and half of the remaining estate.
  • The children inherit (in equal shares if there are two or more children) half of the remainder of the estate.

For any children under the age of 18, any inheritance will be held on statutory trust until they are 18 (or until they are married or have entered into civil partnership).

If there are no surviving children and no spouse or civil partner, the following relatives may be entitled to inherit part of the estate:

  • Grandchildren or great-grandchildren;
  • Brothers and sisters;
  • Nephews and nieces;
  • Grandparents;
  • Uncles, aunts and cousins; and
  • Half-uncles, half-aunts and half-cousins.

However, the following people do not have any right to inherit under the intestacy rules:

  • Unmarried partners or co-habitees;
  • Friends and carers; and
  • Relatives by marriage (eg. brother in law).
Intestacy rules do not cover stepfamilies unless the parent who died had formally adopted the stepchild.

What are the rights of non-married partners under the intestacy rules?

Couples who are living together but are not married (sometimes confusingly referred to as 'common law' partners) do not have any protection under the rules of intestacy. Even if they have co-habited for many years and lived together in every respect as husband and wife, in the absence of a marriage certificate and/or a will, a surviving partner will not be automatically entitled to any of their deceased partner’s estate.

How can the intestacy rules be avoided?

Many modern relationships involve cohabitation and partnership without the official sanction of union through the institution of marriage. As the rules of intestacy fail to recognise this type of ‘unofficial’ family structure, it is crucial for couples who are not married to make wills, in order to avoid falling back on these outdated rules.

Can the intestacy rules be challenged?

It is possible for an unmarried surviving partner (and other dependents) to make a claim for a portion of a deceased’s estate under the Inheritance Act 1975. However, specialist legal advice should be sought if considering making this kind of claim, and individual circumstances will be taken into account. There are also time limits to making a claim under the Inheritance Act.

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