The Eric Whitehead Partnership

There is a very common misconception that if a couple are married and one of them should die then the surviving spouse will inherit everything. This is often not the case.

If a person dies without leaving a Will, then the Rules of Intestacy will apply.

For married couples, the general rule is that, if the deceased had children, then the surviving spouse will receive the deceased’s personal belongings, the first £125,000 of the estate and a “life interest” in half of the rest of the deceased’s estate. A “life interest” effectively means that the survivor will have use of the assets but will not own them. The other half will immediately pass to any children of the deceased and those children will also receiving the half which is subject to the life interest once the surviving spouse has died. If the deceased had no children but did leave parents or siblings, then the surviving spouse will receive the deceased’s personal belongings, the first £200,000 of the estate and one half of the rest of the estate. The other half will be shared equally between the surviving parents/siblings.

It is therefore clear that the consequences of dying without leaving a Will can be far reaching and devastating in certain circumstances.

From 1st February 2009, the Rules of Intestacy will be changed for the first time since 1993. From that date, the amount payable to the surviving spouse will increase from £125,000 to £250,000 in the event of the deceased also leaving children and from £200,000 to £450,000 if the deceased does not have children but leaves parents or siblings.

Although these changes are undoubtedly extremely welcome and well overdue, there is still no substitute for making a valid Will. Even after February 2009, the Rules of Intestacy will still be inflexible and will not allow a person to benefit friends or charities or to leave specific gifts. Neither will they enable a person to choose who will ultimately administer their estate.

The importance of making a Will can best be summed up by the Justice Minister, Bridget Prentice, who recently said, “[the new laws] will give extra protection to married couples whose spouse dies without leaving a Will. But it also highlights how important it is for both men and women to make arrangements for their loved ones in the event of their deaths. Married couples should not assume that when their spouse dies they will automatically be entitled to everything. It is up to individuals to make sure that their wishes are respected by making a Will. My message to people is – don’t leave it to chance. Make sure your loved ones are properly provided for by leaving a Will.”