Modern Life & the Dangers of the Rules of Intestacy

If you die without leaving a valid Will, the Laws of Intestacy determine how your estate (what you leave when you die) is distributed. Like any set of rules, they don’t suit everyone’s circumstances.

If at the time of your death, you are in a relationship which hasn’t been formalised by marriage or Civil Partnership, it is important for you to know that your long-term partner is not recognised by the laws of intestacy* and they will not receive any part of your estate. If you have children together, this can add another additional layer of stress and complexity to an already challenging and difficult situation.

Common misunderstandings people have about dying intestate (without a Will) include the following:

• If you leave a Spouse or Civil Partner surviving you, they will receive your entire estate

Sadly, that isn’t always the case. If your estate is worth more than £322,000, the rules are a little more complicated

• If you were separated** from your Spouse or Civil Partner before your death, the law will acknowledge and take account of this when determining the distribution of your estate

Even if you had entered into another relationship, it will be your Spouse or Civil Partner who will receive an inheritance on your death. Any partner you had at the time of your death will receive nothing under the Laws of Intestacy. It doesn’t matter how long you were together.

• If you have children and are not married, the father has the same rights relating to his children. If the mother dies, the father will automatically have parental responsibility

Only a mother has parental responsibility for her child. A father only has parental responsibility if he:

• is named on the Birth Certificate

• enters into an agreement with the mother

• gets a Parental Responsibility Order from the Court

The position is even more complicated for same sex couples who haven’t entered into marriage or Civil Partnership

• If, during your lifetime, you treated the child of a partner or former partner as your own child, the law will recognise this

The child you considered and treated as your own will receive nothing on your death unless you legally adopted them when they were a minor*.

• The law will recognise and provide for your long-term partner*

As explained above, if you were in a long-term relationship at the time of your death, the Laws of Intestacy do not recognise long-term relationships unless you were married or had entered into a Civil Partnership before your death. There is no provision for a partner, even if you

• lived together for many years

• had children together

• owned a house together

All of the above situations can lead to heart-breaking and stressful situations for your loved ones if you die without having made a Will.

The best way you can show your love is to make a Will which takes account of your present relationships & responsibilities. The importance of making a Will, and keeping it up-to-date really can’t be overstated.

We know life can be complicated. That is why we are here, ready to talk you through your situation and the options available when you are ready.

This blog was written by Sushma Mahey, a Chartered Legal Executive within our Private Client Department. To discuss your particular situation, please get in touch with her to arrange an appointment. She can be reached at sushma.mahey@thomasflavell.co.uk or 01926 887700.

*Although these relationships are not recognised by the Laws of Intestacy, they are acknowledged by the provisions of the Inheritance (Provision for Family & Dependants) Act 1975 (as amended). As a result, someone who has lived with you for the two year period before your death, and/or a child you treated as your own could make a claim against the estate. However, this does not mean they would make a claim, and if they did, that their claim would be successful.

**Legal separations (sometimes called Judicial Separation) does affect the Laws of Intestacy