Three million unmarried couples in the UK believe their partner will inherit -- they are wrong

What intestacy means

Intestacy occurs when a person dies without a valid will, or with a will that does not dispose of all their estate. In England and Wales, the Administration of Estates Act 1925 sets out a fixed hierarchy of beneficiaries who inherit in these circumstances. The rules apply regardless of the deceased's relationships, wishes, or what they may have told family members verbally.

Partial intestacy can also occur -- where a will exists but fails to cover some assets, or where a beneficiary has predeceased the testator and there is no substitute gift. In these cases, the intestacy rules apply to the uncovered assets alongside the will.

Intestacy also determines who has the right to administer the estate. Without an appointed executor, the court grants letters of administration to the next of kin according to a priority order set by the Non-Contentious Probate Rules 1987.

Married or civil partners with children

If you are married or in a civil partnership and have children, your spouse receives all personal chattels (personal possessions, furniture, jewellery), a statutory legacy of £322,000, and half the residue of the estate above that. Your children share the other half of the residue equally. Children under 18 hold their share on statutory trust until they reach 18.

This outcome frequently surprises families. A London estate worth £1,000,000 with a mortgage balance of £200,000 leaves a net estate of £800,000. The surviving spouse receives chattels, the £322,000 statutory legacy, and half the remaining £478,000 (£239,000) -- a total of £561,000. The children share £239,000 equally.

If the estate is worth less than £322,000, the spouse receives everything and the children receive nothing under intestacy.

Married or civil partners with no children

If you are married or in a civil partnership and have no children, your spouse inherits the entire estate. Other relatives -- parents, siblings, nephews and nieces -- receive nothing regardless of your relationship with them or any promises you may have made.

This is the simplest intestacy outcome, and for many married couples it reflects what they would have wanted. The problem arises on the second death: the surviving spouse will die intestate too (unless they make a will), and their estate then passes under the same rules -- which may be to siblings or their children rather than to the people the couple jointly intended.

Unmarried couples -- the cohabitation trap

If you are not married and not in a civil partnership, your partner has no automatic right to inherit anything from your estate. It does not matter how long you have lived together, whether you have children together, whether your partner's name is on the mortgage, or what you have told each other. Under the intestacy rules, an unmarried partner is a legal stranger.

The estate passes instead to your children (if any), or your parents, or your siblings, or further relatives down the hierarchy. In the absence of any living relatives within the defined classes, the estate passes to the Crown as bona vacantia.

For London couples who cohabit in a jointly owned property, the position depends on how the property is owned. Joint tenants hold the property with a right of survivorship -- on one partner's death, the property passes automatically to the survivor regardless of the intestacy rules. But property held as tenants in common does not pass automatically -- the deceased's share falls into the estate and passes under intestacy, not to the surviving partner.

No spouse, children only

If you are unmarried (or your spouse has predeceased you) and you have children, your estate passes equally to your children. If a child has predeceased you, that child's share passes to their own children (your grandchildren) if they have any, subject to the statutory trust for those under 18.

For unmarried parents, this means the surviving parent receives nothing automatically -- the children inherit everything. If the children are under 18, a trustee must be appointed to manage the inheritance until they reach 18. This trustee may not be the person you would have chosen, and the court may appoint someone you would not have wanted.

The full intestacy hierarchy

If there is no surviving spouse and no children, the estate passes in the following order: to parents; then to full siblings (or their children if deceased); then to half-siblings; then to grandparents; then to aunts and uncles (full blood); then to aunts and uncles (half blood). If none of these classes survive, the estate goes to the Crown.

Friends, step-children, unmarried partners, and godchildren receive nothing under intestacy regardless of the deceased's wishes or the closeness of the relationship. The only protection for people outside the statutory hierarchy is a valid will or, in limited circumstances, a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Intestacy Rules -- Who Inherits If You Die Without a Will -- common questions