Distribution of intestate estates in non-traditional families

Abstract

The rules governing the distribution of an intestate estate applied pursuant to s. 46 of the Administration of Estates Act 1925 as amended by s. 1 of the Inheritance and Trustee’s Powers Act 2014 ensure very generous provision for surviving spouses in England and Wales. However, notwithstanding the merits of such provision, the extent to which the regime strikes an appropriate balance in distributing such an estate, in particular between the surviving spouse and a deceased’s children from a former relationship, if present, appears somewhat dubious. The first part of this paper briefly positions the intestacy regime adopted in England and Wales in an international context, placing a special emphasis on the protection afforded to the interests of a deceased’s children from a former relationship in a number of different jurisdictions. The next part critiques the arguments recently advanced by the Law Commission for England and Wales against reform in this area and argues that such reform is, in fact, warranted. On this basis, the final part presents a novel proposal for consideration.