Intestacy and the Modern Household: What the default rules actually do, who they no longer describe, and why the survivor of a thirty-year partnership can rank behind a first cousin

Patterson, Joel (2026): Intestacy and the Modern Household: What the default rules actually do, who they no longer describe, and why the survivor of a thirty-year partnership can rank behind a first cousin.

Abstract

When a person dies in England and Wales without a valid will, their estate is distributed under section 46 of the Administration of Estates Act 1925, as amended. The rules are commonly described as a safety net. They are better described as a specific distribution scheme, drafted around a specific household — married or civil-partnered, with children, property-simple — and applied without modification to every household that fails to opt out of it by making a will. The scheme is precise about that household: a surviving spouse or civil partner takes the personal chattels, a fixed net sum of £322,000, and half of anything beyond it, with the other half held for the children. It is equally precise, in the way silence is precise, about everyone else. A cohabiting partner takes nothing under the rules, at any duration of the relationship. A stepchild who was never adopted takes nothing. A spouse separated for twenty years, but never finally divorced, remains a spouse throughout: entitled to the full spousal share, and to the whole estate where the deceased left no issue.

This paper sets out the current rules exactly, including the parts that get compressed out of summaries: the statutory trusts, the 28-day survivorship condition, the order of relatives that runs from parents to half-blood uncles and aunts before arriving at the Crown, and the recent history of the fixed net sum — including the finding of a House of Lords committee that the 2023 increase was made months later than the statute required, at an identifiable cost to the families in between. It then measures the scheme's assumed household against the Office for National Statistics' count of actual ones, of which 3.5 million are cohabiting-couple families. The Inheritance (Provision for Family and Dependants) Act 1975 patches part of the gap, but by litigation rather than entitlement, and to a maintenance standard rather than a share. A Ministry of Justice consultation open as this paper is written proposes, for the second time in fifteen years, to change the position — this time with the Government stating it is minded to give qualifying cohabitants the same intestacy rights as spouses. Nothing has changed yet.

• Item Type: MPRA Paper
• Language: English
• Keywords: intestacy; Administration of Estates Act 1925; cohabitation; statutory legacy; fixed net sum; family provision; bona vacantia; England and Wales
• Subjects: J - Labor and Demographic Economics > J1 - Demographic Economics > J12 - Marriage ; Marital Dissolution ; Family Structure ; Domestic Abuse; K - Law and Economics > K1 - Basic Areas of Law > K11 - Property Law; K - Law and Economics > K3 - Other Substantive Areas of Law > K36 - Family and Personal Law

References

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Adoption and Children Act 2002 (c. 38), s. 67. Available at: https://www.legislation.gov.uk/ukpga/2002/38

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