Married and unmarried couples could be given better inheritance rights if there is no will in place, under a new proposal from the Law Commission.
Tens of thousands of people die each year without a will, assuming their property and possessions will automatically pass to their partner or other family members. However, the intestacy law – which applies when someone dies without a will – does not give couples guaranteed rights to their partners' estate, regardless of whether they are married, in a civil partnership or living together. Instead, the estate will be divvied up according to 80-year-old laws (see below).
Currently, where couples live together – and even have a child together – and there is no will in place, then there is no automatic right for one of them to inherit their deceased partner’s home or possessions. Married couples and those in civil partnerships, enjoy slightly better rights, but still have no right to the full estate.
However, the Law Commission wants to modernise the law to safeguard the position of bereaved spouses, while taking account of the concerns of children and other relatives of the deceased.
It proposes surviving spouses should inherit their deceased partner’s full estate when there are no children involved, and extend these rules to around two million unmarried partners so they have the right to at least part of their loved one’s estate.
This would mean unmarried couples who have lived together for at least five years would enjoy the same inheritance rights as people married or in civil partnerships, whereas couples living together for two years would be entitled to up to half their partner’s estate should they die without a will in place.
Professor Elizabeth Cooke, who is leading the project at the Law Commission, says: “When a family member dies, the process of grieving, and of adjustment to change, can be made far worse by uncertainty and anxiety about money or belongings. It is vital that the law remains relevant and up to date, reflecting the reality of modern society and the reasonable expectations of those who have been bereaved.”
However, wealth management lawyer Moore Blatch says there needs to be strict definitions over what constitutes an unmarried couple to avoid a rise in contentious claims from the family or the surviving partner over entitlement to assets.
“Reforms, which bring the law more in line with the modern world, are necessary and very important,” says Carla Brown, a senior solicitor at Moore Blatch, “However, I do foresee inevitable difficulties in determining what constitutes living together 'as man and wife'.
"Therefore it is important that the legislation is carefully drafted to avoid an increase in contentious claims from families and partners, causing upset and stress for those involved at an already difficult time.”
The proposals are still only at consultation stage, and Caroline Wallis, a partner at Boyes Turner, says that the current law is unable to change for some time.
What happens if I die without a will?
Married and civil partnership couples
If you die intestate, then your ‘spouse’ – in this context, a husband, wife or civil partner – will receive the first £250,000 of your estate (known as personal chattels) and a life interest in half of anything that remains.
This money will remain in a trust, and will pass to your children or other descendants upon your spouse’s death. The children or other descendants are also entitled to the other half of anything remains, which will be held in a trust until they turn 18.
If you have no children, then your spouse would receive a statutory legacy of £450,000 and half of anything that remains. The other half would pass to your parents or, if they are also deceased, to your siblings.
If you have no living siblings, then your spouse will take the full estate.
Any assets you jointly owned with your partner – such as a house – would not be counted as part of the personal chattels, and in most circumstances would bypass intestacy laws.
If you die intestate, and you were not married or in a civil partnership, then your estate will pass in full to your children or other descendants. In cases where there are no descendants, then the money will pass to your parents or, if they are deceased, to any siblings or their descendants.
After this, half siblings or their descendants take priority, followed by grandparents, then full uncles and aunts (or their descendants), half uncles and aunts (or their descendants), or, finally, the crown.
There is a simple way to get round intestacy laws, and ensure the people or person you want to inherit your wealth actually does – write a will.
“Think about what assets you have and who you would like to leave them to,” says Wallis. “Then you should seek professional advice to write up a will – it’s as simple as that, and it doesn’t have to cost the earth.”