£322,000 First, Then Half: Intestacy in a Second Marriage

If your father remarried and left no will, his estate is not divided evenly between his second wife and his children. In England and Wales it is divided by a fixed formula, and that formula puts his surviving spouse first. She takes his personal possessions, then a set cash sum called the statutory legacy, and then half of whatever is left. Only the other half is shared between his children — and that includes his children from his first marriage.

The number that governs everything is the statutory legacy. For deaths on or after 26 July 2023 it is £322,000. Until a beneficiary understands that this whole sum comes off the top before the children see a penny, the split feels arbitrary. It is not. It is the intestacy rules doing exactly what they were written to do: protect the surviving husband or wife.

The reason this hits first families so hard is that a remarried parent's estate is very often just a house. When the house is the only real asset and it is worth less than the statutory legacy plus the widow's half-share, the children can end up with little, or with nothing at all.

The short answer: the statutory legacy comes first

Where someone dies without a will in England and Wales, leaving a spouse or civil partner and children, the estate is distributed in a strict order set by statute. The surviving spouse receives three things. First, all of the deceased's personal chattels — belongings, the car, furniture, jewellery and so on. Second, a lump sum known as the statutory legacy, currently £322,000, paid before anything else is divided. Third, half of whatever remains after that legacy has been taken.

The children receive the remaining half of the residue, divided equally between them. If a child has already died leaving children of their own, that child's share passes down to the grandchildren.

So the sequence is: possessions to the spouse, £322,000 to the spouse, then split the rest in two — one half to the spouse, one half shared among the children. The spouse's half of the residue is taken outright. The children's half is theirs, and if any of them are under 18 it is held on statutory trusts until they reach that age.

Source: GOV.UK, Intestacy — who inherits if someone dies without a will, HM Government. The statutory legacy of £322,000 applies to deaths on or after 26 July 2023; for deaths between February 2020 and that date the figure was £270,000.

Who counts as the spouse, and who counts as a child

The word "spouse" here means a husband, wife or civil partner to whom the deceased was legally married at the date of death. Separation does not change this. If your father had separated from his second wife but was not divorced, she is still his surviving spouse for intestacy and still takes the statutory legacy. Only a completed divorce or dissolution removes her. This is one of the harshest features of the rules for adult children who assumed a long separation counted for something. It does not.

"Children" means all of the deceased's biological and legally adopted children, of any age, from any relationship. A child of the first marriage inherits on precisely the same terms as a child of the second. There is no seniority and no reduction for being from an earlier family.

The people the rules leave out are stepchildren. If your father's second wife had children of her own whom he never legally adopted, those stepchildren inherit nothing from his estate under intestacy, however close the relationship was in life. If you are working out who is entitled and who is not before anyone distributes anything, it is worth reading how ownership of the family home interacts with all of this, because a share held as tenants in common passes to whoever the will or intestacy names, not to the survivor.

Working it through when the estate is only the house

Take the most common version of this situation. Your father owned a house, had modest savings, and left no will. Suppose the house is worth £400,000, held in his sole name, and there is £20,000 in the bank. The total estate is £420,000.

His widow takes the personal possessions first. She then takes the statutory legacy of £322,000. That leaves £98,000 of residue. She takes half of that, £49,000, and the children share the other half, also £49,000, between them. So on a £420,000 estate, the widow receives roughly £371,000 in value and the children share £49,000.

Now change one figure. Suppose the house is worth £300,000 and there are few other assets, so the estate is worth around £310,000 in total. That is less than the statutory legacy of £322,000. The widow takes the whole estate, and there is no residue left to divide. The children receive nothing — not because anyone intended it, but because the arithmetic runs out before it reaches them.

This is the outcome that shocks first families, and it is entirely ordinary. A parent who owned a typical home, remarried, and never made a will can leave adult children from a first marriage with no inheritance at all, purely through the interaction of one fixed number and a single illiquid asset.

Why the house makes everything harder

On paper the split looks clean. In practice it rarely is, because a house cannot be handed over in halves and quarters like cash. The widow's entitlement is a sum of money and a share of value, but the estate's only substantial asset is bricks and mortar that somebody lives in.

The personal representatives can deal with this in one of two ways. They can appropriate the house to the widow towards her entitlement, accounting for any difference in value — so if the house is worth more than her share, she must fund the excess back into the estate for the children, and if it is worth less, she takes it and receives the balance in cash. Or, where the numbers do not work and the widow cannot buy out the children's share, the house has to be sold so the estate can be divided in money.

The widow does have some protection: as a surviving spouse she has a statutory right to require that the family home be appropriated towards her interest, provided she was living there. But that right does not conjure up money she does not have. Where the house is worth far more than her share and she cannot raise the difference, a sale becomes the only way to pay the children what the formula gives them. Two families, one house, and no clean way to divide it is a recurring problem — we have set out that specific bind in one house, two families and no way to split it.

Personal possessions and the half-and-half split

Two smaller points cause disputes out of proportion to their value. The first is personal possessions. The spouse takes all of them, outright, before any division. "Personal chattels" is defined broadly and covers almost everything moveable in the home, so sentimental items a first family expected to receive — a father's watch, tools, photographs, a car — belong to the widow unless she chooses to pass them on. There is no legal entitlement to them for the children.

The second is the statutory trusts over the children's half. If any child entitled to a share is under 18, their portion is held in trust and cannot be paid out until they turn 18 (or marry earlier). Adult children take their share once the estate is administered. This matters where a first marriage produced grown children and a second marriage produced young ones: the money is the same in principle, but the younger children wait for theirs.

None of this can be changed simply because it feels unfair. The intestacy rules are mechanical. If the family wants a different outcome and everyone who would lose out agrees, the tool for that is a deed of variation, which lets beneficiaries redirect what they receive within two years of the death.

What the first family can and cannot do

If you are a child of the first marriage and the formula has left you with little, there are limited routes, and honesty matters more than false hope here.

You cannot simply override the intestacy split. What you can sometimes do is bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, on the ground that the estate does not make reasonable financial provision for you. For an adult child in good health and financially independent, such claims are difficult and far from guaranteed; the court looks closely at need, not at fairness or expectation. For a dependent child the position is stronger. These claims are normally brought within six months of the grant of representation, so they are time-critical.

The cleaner route, where relationships allow it, is agreement. If the widow is willing, a deed of variation can redirect part of what she inherits to the children, and it can be read back for tax purposes as though your father had written it that way. That depends entirely on her goodwill, which is why the honest advice to anyone in a second marriage is to make a will while both spouses are alive — and, if the worry is providing for a first family without carving up the surviving spouse's home, to look at paying a first family through a policy written in trust rather than through the estate. A pension pot raises the same tension and is dealt with separately in how a single pension pot is split between a second wife and a first marriage's children.

If you are the person trying to prevent this outcome for your own family, the way to keep a home intact for a spouse while still leaving something to children of an earlier relationship is usually life cover written into trust for the children, so it pays them directly and never has to come out of the house. You can get life insurance quotes and ask an FCA-authorised broker to size a policy against the value you want to protect for the first family. What a policy costs, and whether cover is offered, depend on underwriting and are not something to take as read.

Scotland and Northern Ireland

The formula above is for England and Wales only. Do not apply it elsewhere.

In Scotland, intestacy does not use a statutory legacy in this form. A surviving spouse or civil partner has prior rights — to the dwelling house up to a value limit, to its furnishings up to a limit, and to a cash sum — and then both the spouse and the children have legal rights over the moveable estate, before the remainder is distributed. The result is that Scottish children of a first marriage can be in a materially different position from their English counterparts on identical facts, sometimes better. The thresholds are set separately and change over time, so check the current figures on mygov.scot rather than assuming.

Northern Ireland uses its own intestacy rules with a different fixed sum for the surviving spouse and its own rules for dividing the balance between spouse and children. Again, do not read the England and Wales figure across. If the estate is in Scotland or Northern Ireland, the wider process differs too, and our guide to probate, the estate and inheritance tax points to where the devolved rules diverge.

Frequently asked questions

How is an estate divided between a second wife and children with no will?

In England and Wales the surviving spouse takes the personal possessions, a statutory legacy of £322,000, and half of anything remaining. The other half is shared equally between the deceased's children, including those from a first marriage. Scotland and Northern Ireland apply different rules and can reach a different answer on the same estate.

What if the estate is worth less than the statutory legacy?

Then the surviving spouse effectively takes everything and the children receive nothing, because no residue is left to divide. This is the outcome that surprises first families most, and it follows automatically from the intestacy rules whenever no valid will has been made. It is most common when the estate is little more than a modest house.

Does the widow automatically get the family home?

Not automatically, but the personal representatives can appropriate the home towards her entitlement, with any difference in value accounted for. Where the house is worth more than her share, she may have to fund the excess back into the estate, or the property may have to be sold so the children can be paid what the formula gives them.