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26 July 2023 | Comment | Article by Lianne Jones TEP

Intestacy update: what does the latest statutory legacy increase mean for you?

The statutory legacy is the sum a spouse or civil partner is entitled to receive when a person dies without a will (intestate), and they leave behind a spouse/civil partner and children.

The Government has confirmed that the statutory legacy will increase from £270,000 to £322,000 for deaths occurring on and after 26 July 2023.

What is intestacy?

When a person dies without a valid will, they are said to have died intestate. It is also possible to be partially intestate. This happens when there is a valid will, but it does not clearly allocate and dispose of all of the deceased’s assets (for example, because some or all of the people allocated an asset (beneficiaries) named in the will died before the person that wrote the will).

The law sets out who is entitled to inherit on a full or partial intestacy. These rules can be complicated, with the division depending upon the deceased’s family circumstances at the time of death.

More information about the intestacy provisions can be seen in our intestacy rules flow chart.

What happens to spouses/civil partners and children in intestacy?

For deaths occurring on or after 26 July 2023, where the deceased left a spouse/civil partner and a child or children of their own, the net estate (i.e. the estate after payment of funeral and administration expenses, tax and other liabilities), will be divided as follows:

  • The surviving spouse/civil partner will receive the deceased’s personal effects, known as their ‘personal chattels’.
  • The statutory legacy of the first £322,000 (plus interest from the date of death) passes to the deceased’s surviving spouse / civil partner. If the net estate is less than £322,000 plus interest, it will pass entirely to the surviving spouse / civil partner.
  • The remainder of the net estate (if any) will be divided:
    • 50% to the surviving spouse/civil partner
    • 50% will be divided equally among the deceased’s children (by blood or legal adoption). Step-children are not accounted for under the intestacy rules.

Where the deceased has no children, their surviving spouse/civil partner will inherit the entire net estate.

If the deceased has children but no spouse or civil partner, then those child(ren) will take the net estate equally.

To discuss making a will, or how a will could also incorporate effective tax planning , contact our Wills and Estate Planning team.

How does intestacy work for cohabitees and “common law partners”?

It is important to note that the intestacy rules, and therefore the statutory legacy, apply only to couples who are married or in a registered civil partnership. The rules do not recognise or benefit cohabiting or “common law” partners. This is why we strongly recommend that any couples living together but not in a marriage or civil partnership make wills and create a cohabitation agreement as part of their lifetime planning.

Taking care of your loved ones

The intestacy rules are applied without deviation and may mean your estate being distributed in a manner which you do not intend.
A distribution on intestacy provides only for those legally entitled under the rules. There is also no provision for favoured charities or causes and, in some cases, dying intestate can cause inheritance tax to become payable where it need not.

The best way to ensure your estate is distributed as you intend is to make a valid will, bringing you comfort that your nearest and dearest, are catered for in the way in which you truly wish.

Author bio

Lianne Jones TEP

Senior Associate

Since joining Hugh James as a paralegal in 2009, Lianne Jones has specialised exclusively in wills, trusts and probate.  Lianne has a vast experience in advising and preparing wills for a wide range of clients. Most recently, Lianne’s day to day role has primarily focused on the administration of trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.


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