Spouses and civil partners are to receive more when their partners die without making a Will from this month.

It is common to assume that if a person dies intestate (i.e. without a Will), their spouse will receive everything.  This is not necessarily the case as complicated legal rules dictate who receives a person’s estate on death.

Until 1 February, if a person died intestate, leaving a spouse and children, the husband and wife would receive the personal belongings and £125,000 with anything else being carved up between the spouse and children.  This could lead to difficulties if, for example, the house was worth over £125,000 and in the sole name of the spouse who had died.  The other spouse would not even be entitled to the whole of the property and would be dependent on the children reaching an agreement with him or her. 

If there were no children, the spouse would have received £200,000 with the rest of the estate divided between the spouse and other relatives.

The new rules state that, where a person dies leaving a spouse and children, the spouse receives the personal belongings and £250,000; where there are no children, this figure increases to £450,000.

While these reforms do improve the position, there is still the danger that a surviving spouse will lose out, particularly if the family home is worth over £250,000 and in the sole name of the first of them to die, or if the first to die owned a business.

The intestacy rules have often been criticized for leading to unexpected and unwanted results.  For example, if a person dies without a Will, leaving no immediate family, his or her estate will be divided amongst the closest relatives.  These may be people who the deceased did not like, had nothing to do with or had never even met.  Unmarried partners, close friends and favourite charities can never benefit where there is no Will.

Jennifer Melly, head of the Wills, Trusts and Probate department explains: “The most straightforward way to avoid the complex rules of intestacy is to prepare a Will.  Whilst the reforms to the law are to be welcomed, the intestacy rules can still result in a situation which was not foreseen and can cause additional hardships for a family mourning the loss of their loved one.”

For advice on Wills and intestacy, please contact our Wills, Trusts and Probate department.