Inheritance Rights – Your Will May Be Invalid!

To avoid future complications it is important to be aware of your inheritance rights and of the life events that will revoke your existing will.

Inheritance Rights of Spouses

When a person dies intestate (without a will) the law decides how their estate is divided.

When it comes to the rights of spouses and children there are three possible scenarios:

1. If there is a spouse, and no children, the spouse inherits the whole estate.
2. If there are a spouse and children the spouse takes two-thirds and the children share the remaining third.
3. If there are only children surviving the children share the entire estate.

When a person dies testate (having made a valid will) the will identifies the beneficiaries of the deceased’s estate.  However, there are circumstances when the terms of the will can be challenged or its terms can be automatically set aside.

A surviving spouse has automatic rights in a testacy situation.

The Succession Act provides that s/he is entitled to a Legal Right Share in the estate and this has the effect of preventing the deceased from disinheriting their surviving spouse.  If the deceased has children the Legal Right Share of the spouse is one-third of the estate and if there are no children the Legal Right Share is one-half of the estate.  If the deceased has made some provision in his/her will the surviving spouse may decide to take either the bequest under the will or their legal right share. If the surviving spouse does not choose then they are deemed to take the bequest under the will.

Inheritance Rights after Marriage Breakdown

In the case of marital breakdown a surviving spouse’s inheritance rights may be altered depending on the circumstances of the couple.

Where spouses are living apart informally they continue to be spouses in the eyes of the law so their rights under the Succession Act are not affected.

If the couple has gone through the process of a Judicial Separation or Divorce it is often the case that the Court will have granted an order extinguishing a spouse’s rights.

Anyone who marries should be aware that a marriage cancels a previous will unless the will is made in contemplation of the marriage.

Video: Contesting Wills

Inheritance Rights of Civil Partners 

Anyone who has been civilly partnered should be aware that the ceremony revokes a will – many couples have been together for many years and may have already made wills – they will be automatically invalidated so wills should be updated or otherwise it is as if no wills exists!

The inheritance rights of civil partners are almost identical to the rights that are enjoyed by spouses.

In summary, a civil partner will have:

• Entitlement to a Legal Right Share in the estate of his/her deceased civil partner i.e. a civil partner cannot be disinherited.
• If a civil partner dies  intestate, the surviving partner will be entitled to the whole estate where there are no children
• If there are children the surviving civil partner is entitled to two thirds and the children will share one third between them
• If there are only children surviving they share the estate between them

Inheritance Rights of Children 

Children of Civil Partners have the same rights and entitlements as children of a marriage. 

If a child is aggrieved by a parent’s will they can apply to the Court to make provision for them out of the estate by making a section 117 application. The Court will only make provision for an aggrieved child if it is established that the deceased parent has failed in his/her moral duty to make proper provision for them.

The Courts will look at all surrounding circumstances such as the age of the child, their position in life, the age and position of the other children, the means of the parent, whether the provision was made for the child during the deceased’s lifetime, and perhaps the conduct of the child towards their parents.

Podcast: Wills & Family Contention

Cohabitants 

Cohabiting couples do not have automatic inheritance rights.

However, qualifying cohabitants can make an application to the Court to have provision made for them out of the estate of their deceased partner. Qualifying cohabitants are a couple that has been living together in an intimate and committed relationship for a minimum of two years if they have children together and five years in all other cases.

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