Intestacy Married With Children UK (2026): What Happens Without a Will?

If you die married (or in a civil partnership) with children and have no valid will, the Administration of Estates Act 1925 intestacy rules apply. The rules divide the estate between your spouse and your children as follows: (1) THE STATUTORY LEGACY: your spouse receives the first £322,000 of your estate outright (the 'statutory legacy'). This figure was last updated in November 2023 (by SI 2023/736) and should be confirmed at the time of death. The statutory legacy is indexed periodically but is not automatically index-linked; (2) THE SPOUSE'S PERSONAL CHATTELS: your spouse also inherits ALL of your 'personal chattels' — defined broadly under AEA 1925 s.55(1)(x) as household, personal, and domestic items: furniture, cars, clothing, jewellery, books, pictures, etc. Personal chattels do NOT include: money; items used for business purposes; investments (shares, bonds); (3) HALF THE RESIDUE TO THE SPOUSE: if the estate (excluding personal chattels) is worth more than £322,000, your spouse also receives HALF of the balance above the statutory legacy. Example: estate worth £600,000 (excluding chattels). Statutory legacy: £322,000 to spouse. Residue: £278,000. Half residue: £139,000 to spouse. Other half: £139,000 to children. Total to spouse: £322,000 + £139,000 = £461,000; (4) THE CHILDREN'S HALF: the other half of the residue (in the example above, £139,000) goes to the children — divided equally between them, held on the statutory trust until each child reaches 18 (or marries before 18 — though this is uncommon). If a child has predeceased but left their own children (grandchildren of the intestate), the grandchildren step into the deceased child's place; (5) SMALL ESTATES (UNDER £322,000): if the entire estate (excluding personal chattels) is worth £322,000 or less, everything goes to the spouse. The children receive nothing under intestacy in this scenario. This is the most common outcome for modest estates.

Not necessarily — it depends on how the property is owned and whether the estate exceeds £322,000: (1) JOINT TENANCY: if the family home is owned as joint tenants (the most common ownership for married couples), the home passes automatically to the surviving spouse by right of survivorship — OUTSIDE the estate and OUTSIDE the intestacy rules. This is independent of the will or intestacy. Joint tenancy survivorship is immediate on death — no probate needed for this transfer. The home does NOT form part of the estate for the statutory legacy calculation; (2) TENANTS IN COMMON: if the property is owned as tenants in common (often the case where a declaration of trust was made, or the joint tenancy was severed), each owner's share is part of their estate. The deceased's share is subject to the intestacy rules. In this case, the surviving spouse may need to purchase the children's share of the deceased's half of the property to remain in the home — which can be extremely difficult if the children are minors or if the property cannot be sold; (3) SOLE OWNERSHIP: if the property is in the deceased's sole name, it forms part of the estate and is subject to the intestacy rules. If the estate exceeds £322,000, the children are entitled to their share of the residue — potentially including a share of the property; (4) REDRESS FOR THE SURVIVING SPOUSE: if the intestacy rules leave the surviving spouse in a difficult position (e.g. needing to sell the family home to satisfy the children's entitlement), the spouse may: (a) Apply under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision; (b) Exercise the redemption right — under AEA 1925 s.41, the surviving spouse can require the children's entitlement to be satisfied by a cash payment rather than a share in a specific asset (including the family home), if the spouse can raise or is willing to 'buy out' the children's share; (5) THIS IS WHY A WILL MATTERS: intestacy produces results that many couples do not intend. The most common wish is for the estate to pass entirely to the surviving spouse and then to the children. The intestacy rules do not achieve this if the estate exceeds the statutory legacy. A will that leaves everything to the surviving spouse (using the spouse exemption under IHTA 1984 s.18 for IHT purposes) and then to the children on the second death is the standard and simple solution.

When children inherit under intestacy (the half of the residue above the statutory legacy), they do not receive the money immediately — it is held on a statutory trust: (1) WHO HOLDS THE TRUST: the administrators of the estate (appointed by the court in the absence of a will) hold the money in trust for the children; (2) AGE 18: the trust automatically vests (the child receives the money outright) when the child reaches 18. Until then, the trustees manage the money for the child's benefit; (3) TRUSTEES' POWERS: the administrators acting as trustees can apply income and (if authorised) capital for the child's maintenance, education, or benefit. This is governed by the Trustee Act 1925 and the Administration of Estates Act 1925; (4) WHAT HAPPENS IF THE CHILD DIES BEFORE 18 WITHOUT CHILDREN OF THEIR OWN: the interest fails and passes to the other beneficiaries of the estate; (5) COMPARISON WITH A WILL: a well-drafted will can be much more flexible. A will can: (a) Set the vesting age at 21, 25, or older; (b) Give trustees broader discretion to apply capital for the children's benefit during the trust period; (c) Name specific, trusted trustees (rather than whoever the court appoints); (d) Provide for multiple children differently; (e) Include a guardian appointment for minor children; (6) BARE TRUST VS DISCRETIONARY TRUST: the statutory intestacy trust is similar to a bare trust (fixed entitlement) — the child has a fixed entitlement once they reach 18. A testamentary discretionary trust in a will can delay vesting and give trustees discretion to distribute among several children based on their needs, which many parents find preferable; (7) PRACTICAL REALITY: if a couple have young children and no will, and one parent dies with an estate worth more than £322,000, the children may have a legal claim to a share of the estate that the surviving spouse cannot easily satisfy without selling the family home. Making a will prevents this.

The intestacy rules for married with children cover biological children, adopted children, and certain other circumstances: (1) BIOLOGICAL CHILDREN: all children of the deceased who are alive at the date of death inherit equally. There is no distinction between children of the marriage and children from previous relationships — all are treated equally under the intestacy rules; (2) ADOPTED CHILDREN: legally adopted children are treated identically to biological children for all inheritance purposes (Adoption and Children Act 2002 s.67). An adopted child loses inheritance rights from their birth parents on adoption; (3) STEPCHILDREN: stepchildren who have NOT been legally adopted by the deceased do NOT inherit under the intestacy rules. A stepchild is a child of the deceased's spouse or civil partner, not of the deceased. This is a critical gap — a stepparent who has raised a stepchild for many years can leave nothing to that child under the intestacy rules. Only a will can provide for stepchildren; (4) ILLEGITIMATE CHILDREN: children born outside marriage are treated the same as children born within marriage for intestacy purposes. They inherit from both the mother and the father if paternity can be established. Paternity is presumed from DNA evidence, birth certificate acknowledgment, or other evidence; (5) POSTHUMOUS CHILDREN: a child conceived before the parent's death but born after it can still inherit — provided they are born alive and are a live birth; (6) ISSUE WHO PREDECEASE THE INTESTATE: if a child has already died but left their own children (the grandchildren of the intestate), the grandchildren step into the parent's place by representation. The deceased child's share is divided equally among the grandchildren. This is the same as the WA 1837 s.33 anti-lapse rule for wills; (7) WHAT ABOUT CHILDREN FROM A PREVIOUS MARRIAGE: a child from the deceased's first marriage inherits equally alongside any children from the current marriage under the intestacy rules. The statutory legacy still goes to the current spouse first.

The intestacy rules and IHT interact in important ways for married couples with children: (1) SPOUSE EXEMPTION (IHTA 1984 s.18): the portion of the estate that passes to a surviving UK-domiciled spouse or civil partner is completely exempt from IHT — there is no limit on the spousal exemption. The statutory legacy (£322,000) and the half residue that passes to the surviving spouse are both IHT-exempt; (2) CHILDREN'S SHARE IS CHARGEABLE: the children's half of the residue above the statutory legacy is potentially subject to IHT. However, this only matters if the entire estate (including both the spouse's share and the children's share) exceeds the available NRBs. For most modest estates, the NRB (£325,000) absorbs the children's share; (3) WASTED RNRB: the RNRB (£175,000/person) only applies to residential property passing to a direct descendant. Under intestacy, if the family home passes to the spouse (via joint tenancy survivorship), the RNRB is preserved for the second death (transferable RNRB). But if the family home is in sole name and passes to the spouse under the intestacy rules, the RNRB is similarly preserved for the second death. The RNRB is NOT wasted by the spouse exemption — it transfers; (4) DOUBLE IHT ON DEATH OF BOTH PARENTS: if both parents die and the children inherit, the estate may face IHT twice — once on the first death (the children's share) and again on the second death (the survivor's estate). A will that maximises spousal exemption on the first death and uses NRBs efficiently on the second death is more IHT-efficient than intestacy; (5) NIL RATE BAND: the first NRB of £325,000 per person is still available. On second death, any unused NRB from the first death can be transferred (transferable NRB, IHT402 claim). This applies regardless of whether the first spouse died with or without a will; (6) PRACTICAL CONCLUSION: for most married couples with children, the intestacy rules produce acceptable IHT outcomes — but they do not produce the estate administration outcome the couple would have chosen. A will provides certainty, protects the surviving spouse, and prevents children having legally enforceable claims to a share of the estate while young.