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Second marriages with children from a first relationship create one of the most acute intestacy problems. The standard intestacy formula gives the second spouse a large priority share — which may be entirely appropriate — but it can leave the first-marriage children with a fraction of what their parent would have intended, or in some cases, with nothing at all. Without a will, the law cannot balance these competing interests.
Under the Administration of Estates Act 1925, when someone dies married with children, the intestacy formula is:
Note the critical point: children from the first marriage share only the half-remainder above £322,000, equally with any children from the second marriage. If there are no children from the second marriage, the first-marriage children still only get the half-remainder.
For the full intestacy overview, see our main intestacy guide.
Consider: James is in his second marriage to Helen. He has two adult children from his first marriage (Anna and Ben). James and Helen have no children together. James owns a house (held as tenants in common with Helen, each owning 50%) worth £600,000. He has savings of £80,000. James dies without a will.
James's estate consists of his half of the house (£300,000) and his savings (£80,000) = £380,000.
James may have wanted Anna and Ben to each receive a substantial share of his £380,000 estate. Instead, they receive £14,500 each, while the house they may have grown up in passes largely to Helen.
Now consider a smaller estate: James has only his half of the house (£300,000) and no savings. His estate = £300,000. This is below the £322,000 statutory legacy threshold — so Helen inherits everything and Anna and Ben receive nothing.
A further risk unique to second-marriage scenarios is the double-inheritance problem. When James dies, Helen inherits the bulk of his estate. When Helen later dies — if she also dies without a will or leaves everything to her own family — James's first-marriage children may receive nothing from either estate.
James intended for Anna and Ben to benefit from his lifetime's assets. Under intestacy, they may end up with very little from his estate, and nothing from Helen's estate (which is not their legal entitlement in any case). James's accumulated wealth passes entirely to Helen and her family.
This is one of the most important reasons for professional estate planning in second-marriage families. See also our guide on dying without a will in a blended family.
The statutory legacy was designed to protect a surviving spouse — but at a figure of £322,000, it may represent a very large proportion of a typical estate. In parts of England and Wales where property prices are lower, an estate of £322,000 is a large estate. In such cases, the first-marriage children may receive nothing at all.
The figure is set by statutory instrument. The current one is the Administration of Estates Act 1925 (Fixed Net Sum) Order 2023, which set £322,000 for deaths on or after 26 July 2023; the previous figure was £270,000, from 6 February 2020. It does not rise automatically each year, but it is not fixed for ever either: Schedule 1A to the Act requires the Lord Chancellor to review it at least every five years, and to make a new order where the consumer prices index has risen more than 15 per cent above the base month, rounding the new figure up to the nearest £1,000. The figure applies in England and Wales only — Northern Ireland has its own fixed sums of £250,000 and £450,000, and Scotland uses prior and legal rights instead. For more on how the statutory legacy works, see our guide on dying without a will when married with children.
If the family home was held as joint tenants with Helen, it passes to Helen by survivorship — outside the estate entirely. The first-marriage children have no claim on the property. Helen becomes the sole owner.
If held as tenants in common, the deceased's share forms part of the estate and is distributed under the intestacy formula as described above. Helen would receive the statutory legacy amount from the estate (which likely covers much or all of the deceased's property share), with the first-marriage children receiving only any remaining portion.
See our guide on dying without a will with a joint mortgage.
Helen (the surviving second spouse) has first priority to apply for letters of administration. This means that the person who benefits most from intestacy is also the person who administers the estate. This can create tensions with the first-marriage children, who are also beneficiaries but have less power in the process.
The administrator owes duties to all the beneficiaries, not only to herself. A beneficiary can require the administrator to produce an inventory and account of the estate, and the court has power under section 50 of the Administration of Justice Act 1985 to remove a personal representative and appoint a substitute. See our guide to applying for letters of administration.
The first-marriage children are already entitled under the intestacy rules — they receive a share of the remainder above £322,000. To bring an Inheritance Act 1975 claim for more, they would need to show that the intestacy provision is not “reasonable financial provision.”
For adult children, the standard is maintenance provision (not the full standard for spouses). Courts take into account all circumstances — the children's financial needs, the second spouse's needs, and the size of the estate.
Such claims must normally be made within six months of letters of administration being granted. The court can give permission to apply later, but it does not have to.
The intestacy rules apply one formula and cannot weigh a second spouse's security against children from an earlier relationship. A will can. One structure commonly used for exactly this situation is a life interest trust:
This arrangement gives the second spouse security while the first-marriage children ultimately receive their parent's assets. On the tax side, where the surviving spouse's interest is an immediate post-death interest, section 49 of the Inheritance Tax Act 1984 treats them as beneficially entitled to the trust property, so the spouse exemption applies on the first death and the assets are taxed instead as part of their estate on the second. It defers the tax rather than avoiding it.
Use our probate checklist.
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