What happens if you die without a Will, but you are married?

Many married couples assume that if one of them dies, everything will simply pass to the surviving spouse. In some estates that may effectively happen, but once children, business interests or more complex family arrangements are involved, the position can be very different.

If someone dies without a valid Will, their estate is distributed under the intestacy rules. Those rules decide who inherits and in what proportions, rather than leaving that decision to the family.

Where someone dies leaving a spouse or civil partner but no children or other descendants, the surviving spouse or civil partner will generally inherit the whole intestate estate.

Where there are children or other descendants, the position then changes. The surviving spouse or civil partner receives the personal possessions, the first £322,000 of the estate and half of anything left above that amount. The remaining half passes to the children or their descendants.

It’s important to note stepchildren do not automatically inherit under the intestacy rules unless they have been legally adopted, regardless of how long they have been part of the family.

Does marriage cancel an existing Will?

This is another area that often catches people out. In England and Wales, marriage will generally revoke an existing Will unless that Will was specifically made in contemplation of marriage to that person.

Someone may therefore have made a perfectly valid Will several years earlier and assume it still governs their estate after marriage when, in fact, it may no longer be effective.

For anyone who has recently married, or whose Will predates their marriage, it is worth checking rather than assuming the existing arrangements still stand.

Why make a Will if the intestacy rules seem acceptable?

Even where the likely intestacy outcome broadly matches what you want, a Will gives you control over more than who receives the estate.

It allows you to choose executors, appoint guardians for children under 18, decide how particular assets should be dealt with and set out what should happen if a beneficiary dies before you.

For families with children or business interests, relying on marriage alone can leave important decisions to rules that were never designed around your particular circumstances.

mlplaw’s Wills team can advise on Wills and estate planning, including situations involving children, blended families and business interests. If your Will was made before you married, or you do not currently have one in place, we can review how your estate would be dealt with under the current rules.