Guidance based on different relationships to the person who has passed away
Let us break down the guidance based on each of the possible relationships you may have with the person who has passed away:
| Spouse or civil partner |
Under the laws of England and Wales, a spouse is an individual who entered into a legally binding marriage contract with a person of either the opposite or same sex. A spouse for the purposes of the 1975 Act is anyone legally married to the deceased at the time of the deceased’s death. A civil partner for the purposes of the 1975 Act is anyone who has entered into a valid civil partnership with the deceased, and remained in that partnership at the time of the deceased’s death. |
| Former spouse or civil partner |
Under the 1975 Act, former spouses and civil partners are able to bring a claim against the deceased’s estate, provided they have not remarried or entered into a further civil partnership. A former spouse is defined as a person who had been married to the deceased but subsequently ended that marriage by divorce or annulment during the deceased’s lifetime. A former civil partner is defined as a person who had entered into a civil partnership with the deceased but subsequently ended that civil partnership on dissolution or annulment during the deceased’s lifetime. |
| Cohabitee |
A cohabitant is someone who was in a relationship with and lived with the deceased prior to their death. The courts view that it is not necessary for there to be a sexual relationship. It must however be an ‘open and acknowledged’ relationship. The Civil Partnership Act 2004 came into force on 5 December 2005 ensuring the provisions of the 1975 Act were updated to include same-sex cohabitants. |
| Child or ‘treated
as child’ |
Under the 1975 act, the courts recognise the following definitions of children. If any of these describe your relationship, select ‘Child of the deceased’. Biological child A biological child is a boy or girl who is born to their parents naturally, without any medical assistance. This means that the child is genetically related to their mother and father. Adopted child Legislation recognises that an adopted child is the legitimate child of the adopters or adopter. Where a person is adopted by a couple or a partner of his parent, he is to be treated as if he had been born as the child of the relationship of that couple. Treated as a child, or ‘child of the family’ If you were brought up by the deceased person, and treated as if you were their child, then you can challenge the estate under the 1975 Act. |
| Financially Dependent |
Under the 1975 Act, those maintained by the deceased immediately prior to their death are able to bring a claim against the deceased’s estate, provided they have not been adequately provided for. What does ‘being maintained’ actually mean? A person can be considered to have been maintained only if the deceased was making a substantial contribution in money (or a money equivalent) towards the reasonable needs of that person. This will not apply if the arrangement was of a commercial nature (i.e. a person cannot claim that they were being maintained if they rented a property from the deceased at market rate, for example). |
| Direct descendent
or other close relative |
If the person passed away without leaving a will, their money and possessions are distributed equally to the next surviving direct descendants or other close-relatives. The inheritance is distributed by the rules of intestacy. If you were their grandchild or great-grandchild you are a direct descendent. If there is no surviving spouse, children, or direct descendants, the inheritance passes to other close relatives including grandparents, uncles & aunts, or cousins. If there was a will, but for some reason it was invalid, direct descendants or close relatives may be entitled to a share of the inheritance. |
| None of the above |
If you do not fall into any of the above categories, you will not be able to make a claim for provision under the 1975 Act, however you may still be able to make a claim based on other legal grounds |
What are intestate estates?
- When someone dies ‘intestate’, it means that they died without leaving a valid will. It might be that they never made a will, or that the one they did make wasn’t properly written.
- If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will.
- When someone dies without a will, their money, possessions and other assets are distributed to surviving spouses, direct descendants, or other close relatives if they had no children.
The rules of intestacy are as follows:
Married partners and civil partners
- Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy.
- If there are no children or other direct descendants, they inherit all of the money and assets.
- If there are surviving children, grandchildren or great grandchildren of the person who died, the spouse or partner will inherit:
1 – All the personal property and belongings of the person who has died
2 – The first £322,000 of the estate
3 – Half of the remaining estate, if the estate is over £322,000
The other half of the remaining estate is shared out equally among the children or other direct descendants.
Children of the deceased person
- If there is no surviving partner, the children inherit the whole estate. If there are two or more children, the estate will be divided equally between them.
- If there is a surviving partner, children inherit one half of the value of the estate above £322,000. For example, if the estate is £422,000, the first £322,000 goes to the spouse or partner, leaving £100,000. Half of this also goes to the spouse or partner, leaving £50,000 remaining which goes to the children. If there are two or more children, they inherit this in equal shares.
Other direct descendants and close relative.
- If there are no spouses, civil partners or children, the estate is divided among grandchildren, great-grandchildren, or other close relatives. See the diagram below for how the estate is divided in this case.
Disputing intestate estates
- Often, the rules of intestacy do not work for the families left behind. That might be because there are cohabitees or step children who are ignored, or perhaps there are children under 18 who have inherited parts of the estate that the surviving spouse needs (particularly with shares in a house). If this is the case, there are different options.
Varying the terms of intestacy
- Whilst Intestacy Rules are strict, it is possible to change the effect of them if ALL the beneficiaries who are entitled agree and consent to change how the estate is divided to a different arrangement.
- This agreement to vary needs to be dealt with by a legal document known as a Deed of Variation. It is important to take legal advice in these circumstances. We can help draw up a deed of variation to ensure it is legally binding.
Challenge the terms of intestacy under the 1975 Act.
- If a deed of variation is not possible because the parties do not agree, then it may be possible to challenge the distribution of inheritance under the 1975 Act. The 1975 Act gives the courts power to vary the terms of intestacy to provide reasonable financial provision to a qualifying person.
- For example, if the rules of intestacy mean that a person who was financially dependent on the deceased no longer has that support, the courts can assess the needs of that person and change the inheritance arrangements to ensure they are provided for.
- Challenging the rules of intestacy under the 1975 Act requires expert legal assistance to assess the circumstances, gather the evidence and make the application. We can provide the legal assistance you need to challenge the inheritance arrangements under the 1975 Act.
- We have created a tool that can help you understand the legal issues around these disputes and give you an instant answer to whether anything can be done to resolve your situation. Try out the Claim Checker tool here!