Yes. Being married does not mean your husband or wife inherits everything. If you are married with children and die without a will, your spouse receives your possessions, the first £322,000, then half of what is left. Your children share the rest. A will is the only way to decide this yourself.
It is one of the questions I am asked most often, usually by a married couple sitting across the kitchen table from me. Surely, they say, if one of us goes, everything simply passes to the other. We are married, after all. I understand why people think it. It feels like it ought to be true. But it is one of the most common and most costly misunderstandings in my line of work, and I would rather you heard the truth of it from me now than your family discovered it the hard way later.
The common myth that a spouse inherits everything
The belief is deeply held. I have met people in their seventies, married for half a century, who were quite certain that marriage alone would see everything pass to the survivor. It is an easy assumption to make. You have shared a home, a bank account and a life, so it seems only natural that the law would treat you as one.
The law does not quite see it that way. Marriage gives your spouse a strong position, certainly, but it does not hand them the whole estate as a matter of course. Whether they inherit everything depends on one thing above all else, and that is whether you have children.
What actually happens under intestacy
When you die without a will, you are said to have died "intestate", and a fixed set of rules decides who inherits. I have written about these rules in more detail in my piece on what happens if you die without a will, but here is the part that matters most to married couples.
If you are married with children and die intestate, your husband or wife receives your personal possessions, the first £322,000 of your estate outright (the "statutory legacy", in force since July 2023), and then half of whatever remains. The other half is divided between your children. So your spouse does not get the lot. They get a good deal of it, but your children become entitled to a share whether that suits your family's circumstances or not.
There is one exception worth knowing. If you are married with no children, your spouse does inherit everything under the rules. That is the single case where the common assumption holds. The trouble is that most married couples I see have children, and so the assumption lets them down.
The problem this can cause with the family home
For a modest estate, splitting the remainder with the children may cause no difficulty at all. The problem shows itself when there is a house involved, which for most married couples is the largest thing they own.
Around here an ordinary family home is worth a good deal more than £322,000. Once the value of your share of the property is added in, the estate can sail past that figure, and the children's half-share of the remainder has to be found from somewhere. If the money is not sitting in a savings account, the only way to pay them can be to sell the house. That is the surviving spouse's home we are talking about.
A widow does not expect, in the worst week of her life, to be told the family home may have to be sold to pay her own children their share. But that is exactly where the rules can lead.
It sounds far-fetched until you have seen it. It is rare that children would force a sale in practice, but the entitlement exists, and where relations are strained, or where the children are from an earlier marriage, it stops being theoretical. A will removes the risk by letting you say plainly who gets the house and when.
But we're not married
I should say a word to those of you who are not married, because if the position is uncomfortable for married couples it is far worse for you. An unmarried partner inherits nothing under the intestacy rules. Not a reduced share, not a delayed share. Nothing at all.
People tell me they are protected by common-law marriage. There is no such thing. Common-law marriage does not exist in England and Wales, and it never has. You may have lived together for forty years and raised a family together, and your partner would still have no automatic right to inherit a penny if you died without a will. The only way to provide for an unmarried partner is to write it down in a valid will. If that is your situation, it is the most important thing on this page for you.
Protecting children from a previous relationship
Second marriages and blended families are where the intestacy rules do the most damage, and where I most often advise a will rather than leaving things to chance. Picture a man who remarries and leaves everything to his new wife, trusting that she will pass it on to his children from his first marriage in time. She may fully intend to. But once it is hers, she is free to leave it wherever she likes, and his children can find themselves with nothing.
A will can be written to look after both. One common approach is a property trust, which lets your surviving spouse live in the home for the rest of their life while making sure your own children ultimately inherit your share. It gives the survivor security and protects the children at the same time. It is not the right answer for everyone, so it is worth talking through your own circumstances, but for blended families it is often the piece that solves the puzzle.
Why married couples usually make mirror wills
For most married couples, the sensible answer is a pair of mirror wills. Each of you makes a will in near-identical terms, typically leaving everything to the other and then, when you have both gone, to your children. You each appoint the other as executor, and you can name guardians for any young children while you are at it.
It is a modest job and it settles the questions the intestacy rules would otherwise answer for you badly. You decide who inherits, you decide who looks after the children, and you both know you are covered whichever of you goes first. That, more than anything, is why I would say yes, you do need a will, even, and perhaps especially, when you are married.
Putting it right
None of this is complicated to sort out. At Choice Wills a single will is £225 and mirror wills for a couple are £450, agreed as a fixed fee before I begin. I see couples in their own homes across Northamptonshire, or over a video call anywhere in England and Wales, and the first conversation costs nothing.
If you have been assuming marriage takes care of it, do get in touch and let us make sure it actually does. It is an afternoon's work that saves your family a great deal of worry down the line.
Common questions
Does my spouse automatically inherit everything?
Not if you have children. Your husband or wife receives your personal possessions, the first £322,000 of your estate and half of the remainder. The other half is divided between your children. Your spouse only inherits everything if you have no children.
Do married couples still need a will?
Yes. Being married does not mean everything passes to your spouse automatically, and it does nothing to appoint guardians for your children or to protect a home for the next generation. A will lets you decide these things rather than leaving them to a fixed set of rules.
What happens to my house if I die without a will?
It depends on how the house is owned and how much your estate is worth. If your share of the home takes the estate above £322,000, your children become entitled to a share of the remainder, and in some cases the home has to be sold to pay them. A will can help avoid that.
Do unmarried partners inherit anything?
Nothing. Under the intestacy rules an unmarried partner has no automatic right to inherit, however long you have lived together. Common-law marriage does not exist in England and Wales. The only reliable way to provide for a partner you are not married to is to make a will.
Should married couples have mirror wills?
For most married couples, mirror wills are the sensible answer. Each of you makes a will in near-identical terms, usually leaving everything to the other and then to the children. It is straightforward and it means you are both covered, whichever of you goes first.