When one spouse dies without a valid will, many families assume everything automatically passes to the other. That is not always how the intestacy rules for married couples work. The result can be particularly upsetting where there are children from a previous relationship, an unmarried partner, or a home owned in a way that does not pass automatically.
For couples in England and Wales, a will is not only about deciding who inherits. It is about making life easier for the person left behind, at a time when they may already be dealing with grief, bills and difficult practical decisions.
What does intestacy mean for a married couple?
A person dies intestate when they die without a legally valid will. Their estate is then shared according to rules set by law, rather than according to what they may have said they wanted during their lifetime.
The rules recognise a legal spouse or civil partner. They do not recognise a partner simply because a couple lived together for many years, shared children or owned a home together. There is no such legal status as a common-law spouse in England and Wales.
If you are married or in a civil partnership when your spouse dies, you may inherit under intestacy. But the amount you receive depends mainly on whether they leave children or other direct descendants. This can make a substantial difference to the security of the surviving spouse.
Intestacy rules for married couples with no children
If a married person dies without a will and has no children, grandchildren or other descendants, their spouse or civil partner will usually inherit the whole estate.
That includes their personal possessions, known in the law as personal chattels, as well as money, investments and property that form part of their estate. On the surface, this seems straightforward. Yet it is still worth having a will.
A will can appoint executors you trust, set out funeral wishes, make provision for specific gifts and make the administration of your estate clearer. It also protects against changes in family circumstances that may arise later, such as children, a separation, or buying a property as tenants in common.
What happens when there are children?
This is where the common assumption of “my spouse gets everything” often falls apart.
Where someone dies intestate leaving a spouse or civil partner and children, the surviving spouse receives their personal chattels and the first £322,000 of the estate. This is called the statutory legacy. The amount may be changed by the Government in future, so it should not be treated as a permanent figure.
Anything left after the statutory legacy is called the residue. The surviving spouse receives half of that residue outright. The other half is shared equally between the children.
For example, imagine an estate worth £500,000 after debts, funeral costs and administration expenses. The spouse receives the personal chattels and the first £322,000. Of the remaining £178,000, the spouse receives £89,000 and the children share £89,000. The spouse would therefore receive £411,000, plus the personal possessions, while the children would receive their inheritance at the same time.
That may not be what either partner intended. A surviving spouse may need the full estate to remain in the family home, pay off a mortgage, replace lost income or plan for retirement. Adult children may be understanding, but intestacy is a legal process, not a family agreement based on goodwill.
Children from previous relationships
Intestacy can be especially difficult for blended families. All of the deceased person’s children are treated equally, whether they were born within the current marriage, from an earlier relationship or adopted.
A stepchild does not automatically inherit under intestacy unless they were legally adopted by the deceased. This can leave a surviving spouse trying to balance their own financial security with the needs of children who may have been part of the family for decades but have no automatic entitlement.
A will allows you to make deliberate choices. You may wish to leave assets to your spouse during their lifetime, while ensuring that your own children inherit later. Depending on the circumstances, a Flexible Life Interest Trust or Protective Property Trust may help provide that balance. These arrangements need careful consideration, particularly where a property, remarriage or care fees are concerns.
Does the family home pass to the surviving spouse?
It depends on how the property is owned. This is one of the most important details for married homeowners to understand.
If you own your home as joint tenants, the deceased owner’s share usually passes automatically to the surviving owner by survivorship. It does not pass under a will or the intestacy rules. This can provide immediate reassurance, although it does not solve every estate-planning question.
If you own as tenants in common, each person owns a distinct share of the property. That share forms part of their estate and passes under their will or, if there is no will, under intestacy. A surviving spouse could therefore end up owning their own share of the home alongside children who have inherited the other share.
This does not necessarily mean the home must be sold immediately. However, it can create uncertainty and may make future decisions harder. A will can set out whether a spouse should be able to stay in the property and who should inherit the share eventually.
What is not included in the intestate estate?
Not every asset is distributed under intestacy. Jointly owned assets that pass by survivorship are usually outside the estate. Some pensions, life insurance policies written in trust and death-in-service benefits may also be paid at the discretion of pension trustees or nominated beneficiaries.
That does not mean you should leave these arrangements unchecked. Review pension nominations and life insurance details alongside your will. A will is central to estate planning, but it works best when the wider picture is organised too.
Separation, divorce and remarriage
If you are separated but still legally married, your spouse may still inherit under intestacy. Living apart, even for a long time, does not remove their rights. Only a final divorce order ends a former spouse’s automatic entitlement under the intestacy rules.
Remarriage matters too. In most cases, getting married revokes an existing will unless the will was specifically made in contemplation of that marriage. Couples sometimes assume an old will remains valid after a wedding, only to find that it does not.
These rules can produce outcomes that feel completely at odds with family expectations. If you are separated, remarried, cohabiting after a previous marriage, or have children from different relationships, a current will should be treated as essential rather than optional.
Why relying on intestacy can cause avoidable stress
Intestacy applies a fixed formula. It cannot take account of who is financially dependent on you, who needs to remain in the home, whether one child has greater needs, or whether you want to protect an inheritance for future generations.
It can also lead to delay. The people dealing with the estate must establish who is entitled, apply for authority to administer it and follow the statutory order. Where family relationships are complicated, disagreements can quickly follow.
A will gives you the chance to appoint executors, choose guardians for young children, name beneficiaries and explain how you want your assets handled. It also gives your spouse clearer direction at a time when uncertainty is the last thing they need.
For many couples, mirror wills are a practical starting point. Each person makes their own will, but the documents can reflect shared wishes, such as leaving everything to the other spouse and then to the children. They can be updated if circumstances change.
English Wills helps make this process more approachable, but the key is to act while you can make decisions calmly and clearly. If your estate is complex, or you are considering a trust, take appropriate professional advice before finalising your plans.
A marriage is a partnership, but intestacy is a legal formula. Put your wishes in writing now, so the person you love is protected by your decisions rather than limited by rules you never chose.