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Spousal Legacy

What happens when someone dies without a Will?

When a person dies without a Will in England & Wales, statute tells us how that estate should be distributed, this is known as the Intestacy Rules.

Those rules had previously provided that if a person is married with children at the time of their death and has no Will, then their surviving spouse is automatically entitled to receive a Statutory Legacy amount of £270,000, the personal possessions of the deceased and half the remainder of the estate.  The other half would pass to the children equally.

Statutory Legacy

From 26 July 2023, the government has increased that Statutory legacy amount to £322,000 which has been prompted by inflation.  This is clearly of benefit to the surviving spouse.  However, some may question whether it goes far enough.

There has historically been a widely held misconception that if you are married and die without a Will, your spouse or Civil Partner would receive everything, which is not the case when there are children involved.  There remains a lack of understanding for unmarried partners as to whether they are entitled to receive anything.  The intestacy rules can also lead to disputes between family members, particularly if there are children from different relationships or estranged relationships.

To avoid the Intestacy rules applying, a person needs to make a Will.  This will enable the entire estate to pass to their spouse in the first instance, which is often the most practical and inheritance tax efficient way for the estate to pass on the first death. Alternatively, by writing a Will a person can confirm their wishes and plan how their assets will pass to their beneficiaries.

Can you vary intestacy?

Whilst it may be possible to vary an intestacy, this involves agreement of the children if they are over the age of 18 and if not, an application to the Court which requires good reasons as to why the estate should be varied.  This may or may not be accepted by the beneficiaries involved or the Court.  Such a variation inevitably leads to further work and costs which can be avoided if a Will is drawn up.

Who is entitled to the Statutory Legacy?

It remains the position that it is only the surviving spouse or Civil Partner that is entitled to the Statutory Legacy. Unmarried partners do not have a right to receive any assets unless this is specified in a validly executed Will.  An unmarried Partner may bring a claim against the estate and a valid Will and a detailed Letters of Wishes can greatly assist in defending such claims.

If you would like any further information in relation to estate planning, Wills or estate administration, please do not hesitate to contact our Trusts and Estates team on 01244 354800 or email: or

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