Partners and Children – Know Your Inheritance Rights

Be it a father, mother, husband, wife, or partner, when a loved one passes on it is in your best interest to know your inheritance rights in advance, rather than trying to face the unknown at an emotional time in your life.  The inheritance rights of spouses, partners and children depend on a number of factors.  The first determining factor is whether a person dies testate –  leaving a Will or intestate –  without a Will.

When a person dies intestate (without a Will) the law decides how the deceased’s estate is divided.  When it comes to the rights of spouses and children there are three possible scenarios.  If there is a spouse, and no children, the spouse inherits the whole estate.  If there is a spouse and children the spouse takes two-thirds and the children share the remaining third.  If there is only children the children share the entire estate.  If there is a cohabitant they may be able to make a claim to a Court for redress.

When a person dies testate (having made a valid Will) the Will identifies the person/people who the deceased wishes to have his/her assets.  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 very definite and 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 the surviving spouse.  If the deceased has children the Legal Right Share of the spouse is one-third 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 take that bequest as partial satisfaction of the Legal Right Share.  Again a cohabitant may be able to make a claim against the estate of a deceased partner.

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.  Where the spouses have a Deed of Separation they will often have given up their entitlements.

If the couple of have gone through the process of a Judicial Separation it is often the case that the Court will have granted an order extinguishing a spouse’s rights.  When a divorce is obtained inIreland the marriage is dissolved, therefore the spouses lose their rights to their share on intestacy and their Legal Right Share.

If a parent dies intestate children have a right to a one-third share in the estate, to share between them, if there is a surviving spouse. If there is no surviving spouse they are entitled to share the entire estate.  There is no equivalent of the legal right share for children in a testacy situation.  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. 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.  It is the child’s responsibility to prove this and it can be difficult to establish.  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 provision was made for the child during the deceased’s lifetime and perhaps the conduct of the child towards their parents.  More recently, the High Court said it will look into whether the child had a need which the parent satisfied financially.

If a child is unhappy about the provision that has been made for them they should act quickly and seek the advices of a solicitor.  Children have no right to be told of their rights to bring a claim and they only have six months from the date of Grant of Probate to make a claim.

If, prior to death, the deceased disposed of all of his/her property in an attempt to prevent his/ her spouse or child from inheriting the spouse or children can in some circumstances  take steps to recover the proceeds of sale and/ or the property.

The area of inheritance, as it is traditionally known, will now evolve due to the Civil Partnership and Cohabitation Act 2010.  A qualifying cohabitant can make an application to the Court for provision after the breakdown of a relationship or out of the Estate of a deceased cohabiting partner.