When someone dies without a valid will in England and Wales leaving both a spouse or civil partner and children, the intestacy rules split the estate by a fixed formula. The surviving spouse receives the personal possessions, the first £322,000 of the estate (known as the statutory legacy) and half of everything above that figure. The children share the other half equally, whatever their age, held for them until they turn 18. If the estate is worth £322,000 or less, the spouse takes it all and the children receive nothing.
Worked example in one line: on a £750,000 estate passing under intestacy, the spouse receives £322,000 plus half of the remaining £428,000, a total of £536,000 plus the personal possessions, and the children share the other £214,000 between them. This page works through that mechanic in detail, with a table of examples at different estate values, and flags the two things that most often surprise families: jointly owned assets that bypass the split entirely, and the people the rules quietly exclude. It covers England and Wales only. Scotland has a different system built around prior rights, covered in our separate guide to the Scottish intestacy rules. And if there is no surviving spouse at all, the full order of who inherits is set out in our guide to who inherits when there is no will.
The legal formula: chattels, £322,000, then half of the rest
The rules come from section 46 of the Administration of Estates Act 1925, as amended over the years. Where the person who died (the intestate) leaves both a spouse or civil partner and "issue" (children, or grandchildren and great-grandchildren standing in the place of a child who died first), the estate is divided in three steps:
- Personal chattels to the spouse. Furniture, cars, jewellery, everyday possessions. These pass to the surviving spouse or civil partner outright, before any figures are calculated.
- The statutory legacy of £322,000 to the spouse. A fixed first slice of the estate, set at £322,000 by the Administration of Estates Act 1925 (Fixed Net Sum) Order 2023 for deaths on or after 26 July 2023. It is paid after debts and funeral expenses, and it carries interest from the date of death until it is paid.
- The remainder split in half. Whatever is left is divided into two equal halves. One half goes to the spouse absolutely (theirs outright, to spend or leave as they wish). The other half is shared equally between the children.
The children's half is held on what the legislation calls the statutory trusts. Each child's share vests when they reach 18 (or marry or form a civil partnership earlier). If a child died before the intestate leaving children of their own, those grandchildren step into their parent's place and share that portion. The government's own summary of the rules is at gov.uk: who inherits if someone dies without a will, and the underlying HMRC guidance for personal representatives sits in the Inheritance Tax Manual.
Two consequences follow directly from the formula. First, on smaller estates the children inherit nothing: the statutory legacy swallows everything up to £322,000. Second, on larger estates the spouse does not get everything, however long the marriage, and however much the family assumed they would. Both outcomes regularly come as a shock, in opposite directions.
Worked examples: the split in pounds at different estate sizes
The table below shows the division of an estate passing under intestacy where there is a surviving spouse or civil partner and children. "Estate" here means the net estate after debts and funeral costs, excluding personal chattels (which go to the spouse in every row) and excluding anything passing outside the estate by survivorship, which we cover next.
| Net intestate estate | Spouse or civil partner receives | Children share (equally) |
|---|---|---|
| £200,000 | £200,000 (all of it) plus chattels | £0 |
| £322,000 | £322,000 plus chattels | £0 |
| £400,000 | £322,000 + £39,000 = £361,000 plus chattels | £39,000 |
| £500,000 | £322,000 + £89,000 = £411,000 plus chattels | £89,000 |
| £750,000 | £322,000 + £214,000 = £536,000 plus chattels | £214,000 |
| £1,000,000 | £322,000 + £339,000 = £661,000 plus chattels | £339,000 |
So with two children and a £1,000,000 intestate estate, each child is entitled to £169,500, held for them until 18. With one child, that child alone takes the full £339,000. The number of children changes how the children's half is shared, but never the size of the spouse's entitlement.
Joint assets change the maths before the rules even start
The intestacy formula only applies to assets that pass through the estate. A large part of a typical couple's wealth never does:
- The family home, if owned as joint tenants. This is the most common way couples own property. On the first death the whole property passes automatically to the surviving co-owner by survivorship. It is not part of the intestacy split at all.
- The family home, if owned as tenants in common. Here each owner has a distinct share, and the deceased's share does go through the estate and into the intestacy formula. The surviving spouse can usually require the home (or the deceased's share of it) to be appropriated towards their entitlement, but the children may still have a stake.
- Joint bank accounts. These generally pass to the surviving holder by survivorship.
- Pension death benefits and life policies written in trust. These are usually paid at the scheme's or trustees' discretion, outside the estate, though the inheritance tax treatment of unused pension funds changes from 6 April 2027.
This is why doing rough intestacy maths on "everything we own" gives the wrong answer. A couple with a £600,000 jointly owned home (joint tenants) and £250,000 in the sole name of the person who died looks like an £850,000 estate, but only £250,000 passes under intestacy, so the surviving spouse takes all of it and the children receive nothing. A neighbouring family with the same total wealth held mostly in the deceased's sole name would see a very different split. Whether a grant of probate (strictly, letters of administration) is even needed in this situation is a separate question, covered in our guide to whether you need probate when a spouse dies.
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The gotchas: 28 days, cohabitees and step-children
The spouse must survive by 28 days
Under section 46(2A) of the Administration of Estates Act 1925, inserted by the Law Reform (Succession) Act 1995, the surviving spouse or civil partner must outlive the deceased by 28 days to inherit under intestacy. If they die within that window, the estate is distributed as if they had not survived at all, which usually means everything passes to the children instead. This matters most after accidents involving both partners.
Unmarried partners get nothing
The intestacy rules recognise only a legal spouse or civil partner. A cohabiting partner has no automatic entitlement, whether the relationship lasted two years or forty, and whether or not there are children together. A separated but not yet divorced spouse, by contrast, still inherits in full. This is the single harshest edge of the system, and it is covered in depth in our guide to intestacy and unmarried partners.
Step-children are passed over, adopted children are not
"Children" under intestacy means birth children (whether or not the parents were married) and legally adopted children, who inherit exactly as birth children do. A step-child who was never adopted has no entitlement, no matter how long they were part of the family. For blended families this can cut both ways: a step-child raised from infancy receives nothing, while an estranged birth child from a first marriage takes a full share. If that describes your family, our guide for blended families sets out the planning options, and the short answer is almost always a will.
The inheritance tax sting in the children's half
Intestacy does not just decide who gets what. It can also create an inheritance tax bill a will would have avoided. Anything passing to the surviving spouse or civil partner is covered by the spousal exemption, with no IHT whatever the amount. The children's share is not exempt: it is taxed like any other gift on death, using the £325,000 nil-rate band (frozen until 5 April 2031) and, where a home passes to direct descendants, the £175,000 residence nil-rate band.
On modest estates this rarely bites, because the children's share sits comfortably within the nil-rate band. On larger estates it can. Take a £1,200,000 sole-name estate: intestacy sends £322,000 plus £439,000 to the spouse (exempt) and £439,000 to the children. That children's share uses up most of the nil-rate band on the first death, reducing what can transfer to the survivor's estate later, and the interaction with the residence nil-rate band depends on what the children actually receive. The mechanics of transferring allowances between spouses are explained in our guide to the married couples' inheritance tax threshold and the RNRB. To see where your own family's numbers land, the quickest route is our free IHT threshold calculator: enter the estate value and how it is owned, and it works out the available allowances and any exposure.
Can the split be changed?
Yes. The intestacy outcome is a default, not a locked door. The two main routes:
- Deed of variation. Within two years of the death, adult beneficiaries with capacity can agree to redirect their entitlements, and the variation can be read back for inheritance tax purposes as if the deceased had made it. Adult children commonly use this to pass more (or all) of their share to a surviving parent, restoring the "spouse gets everything" outcome the family expected. It cannot be used to sign away a minor child's share without the court's approval, which is a real constraint, since the children's half so often belongs to minors.
- A claim under the Inheritance (Provision for Family and Dependants) Act 1975. A spouse, cohabitee of two years or more, child or dependant left without reasonable financial provision can ask the court to redistribute the estate. This is slower, costlier and less certain than agreement, and this site does not cover contested claims strategy, but it exists as a backstop.
None of this changes the administration itself: someone still has to apply for letters of administration and gather the estate, and the position differs from the executor route that applies when there is a will. The wider lesson is blunt. Every outcome on this page, the children waiting until 18, the step-child passed over, the avoidable IHT, is the product of not having a will. Our wills hub explains what making one involves, and our inheritance tax hub covers the planning side.
Speak to a specialist
If you are a surviving spouse working out your entitlement, or an administrator trying to divide an estate correctly between a spouse and children, the formula is fixed but the facts (how assets were owned, who counts as a child, what passes by survivorship) rarely are. We can put you in touch with a vetted probate specialist, no obligation, and our guide for surviving spouses covers the first practical steps. Before that call, run your figures through the free IHT threshold calculator so you arrive knowing roughly where the estate stands. This article is general information for England and Wales, not legal advice.