Died without a will, married with children: the £322,000 statutory legacy and half of the rest, worked at three estate sizes

The first meeting with a bereaved spouse often starts with the same question: the husband never made a will, so who gets what? The family tends to assume everything goes to the surviving spouse. With children, it does not, and the figure that decides the split is one every probate fee-earner should be able to state without looking it up.

The rule

Where someone dies intestate in England and Wales leaving a spouse or civil partner and children, HMRC's manual sets out three steps for deaths on or after 1 October 2014.

1. The spouse or civil partner takes the personal chattels.
2. They take a fixed net sum, the statutory legacy. The 2023 Order sets it at £322,000, in force from 26 July 2023.
3. Of the residue, the spouse takes half absolutely, and the other half is held on statutory trusts for the children.

Where there are no children (issue), the spouse takes the whole intestate estate.

The order's text does not say which deaths it applies to, so a death before 26 July 2023 needs the earlier sum; check the date before you run the figures. Secondary sources also mention interest on the legacy from the date of death. I did not read the rate, so the figures below leave it out.

Three estates worked

Net estate means after funeral costs, expenses and debts, before personal chattels, which are taken separately and are left out of these sums.

The £250,000 line is the one that surprises families. Because the legacy is a fixed sum, an estate below £322,000 passes to the spouse in full even where there are children. The children begin to take a share only once the estate passes £322,000, and then only half of the excess.

What changes the answer

• No children, grandchildren or other issue: the whole estate goes to the spouse. There is no legacy calculation to run.
• Assets that pass outside the estate: a jointly owned home that passes by survivorship, pensions with a nominated beneficiary and life policies in trust are not in the net estate. The figures above apply to what is left. Our guide to small estates and the probate threshold covers the joint-property point.
• Partners who are not married: I did not read the GOV.UK page that sets out who inherits, as it returned only a link to a checker, so I have not stated their position here. Check the rules before you advise.
• A will that fails in part: the same logic applies to what the will does not dispose of, but I did not read the rule for this guide.

What to tell the family

Say the sums in pounds. A spouse who learns they take £411,000 of £500,000 understands it in a way they do not understand "a statutory legacy and half the residue". Say that the children's half may be held on trust until they are 18 where they are minors; this is in the secondary sources and not in the pages I read, so confirm it from the Act.

Then put dates on what follows: the executor's duties are not the administrator's duties, and the time limits on distributing an estate and the key dates in a probate timeline apply once the grant is in. For larger estates, the residence nil-rate band taper also matters for what is left.

Overlyft builds AI staff who join your private client team, take the asset list from the first meeting note, run the intestacy split with the statutory sum and prepare a one-page client summary with the sums in pounds, for the fee-earner to check before it is sent.

This is general information, not legal advice. Check the legislation and the facts of the estate before you advise.