O’SHEA LEGAL – PROBATE SOLICITORS IRELAND
DOWNLOAD 4
THE LEGAL RIGHTS OF SPOUSES, CHILDREN, COHABITANTS AND
CIVIL PARTNERS
THE RIGHTS OF A SPOUSE AND CIVIL PARTNER.
A surviving spouse has a special status under Irish inheritance law and is afforded
special protections whether the deceased spouse died with or without a Will.
Legal Share – No Will:
If a person dies intestate (no will) and leaves a surviving spouse then :
 Where there are no children the spouse is entitled to the entire estate and:
 Where there are children the spouse is entitled to two thirds and the children
are entitled to one third.
Tip – remember that a separated spouse may have renounced her inheritance rights in
a separation agreement or a court may have extinguished the share in a judicial
separation. It is important therefore to examine any agreements or court orders.
An LPR is also under a duty to bring the death to the notice of the other spouse. Even
a divorced spouse who has not remarried is entitled to apply to court for provision out
of the estate!
Legal Right Share – Will:
If a person dies testate (with a will) and leaves a spouse then:
 Where there are no children the spouse is entitled to one half of the estate and;
 If there are children the spouse is entitled to one third of the estate.
Where there is a bequest in a will to a spouse then he or she may elect to take either
that bequest or the legal right share. Failure to choose means they take the bequest.
The legal right share is calculated by reference to the net estate, that is after payment
of debts funeral and testamentary expenses. Excluded from the calculation is property
held jointly and assets which go to a nominated person such as the proceeds of certain
insurance policies and some Post Office Bonds and Certificates. If the deceased
transferred assets within three years of death in order to deprive the spouse of her lrs
then an application may be made to include the value of those assets in the calculation
of the value of the lrs. The legal right share gets priority over any other bequests in a
will.
A spouse who has been left out of a will is automatically be entitled to receive his or
her legal right share without having to elect.
A surviving spouse may forfeit their legal right share if guilty of murder, attempted
murder, or manslaughter of the other, or guilty of an offence against the deceased or
against a child of the deceased punishable by imprisonment for a period of at least
two years. Lillis case.
A spouse should always take legal advice before making an election as the rules
governing the spouses rights are complicated and can be a trap for the unwary.
Tips - Time limits apply. The lpr must notify the spouse of her right to a lrs. The
spouse then has 6 months from the date of receipt of notification or one year from the
date of the Grant, whichever is the later, to exercise the right to appropriate.
Spouses right to take the family home:
If a spouse is living in the family home or any dwelling, which was in the sole name
of the deceased spouse, he or she may choose to take the home as part of his or her
legal right share in the estate. This is called the right to appropriate. If the home is
worth more than the lrs share of the estate then the surplus value will have to be
purchased by the surviving spouse from the estate. The spouses legal right share has
priority over the rights of other beneficiaries.
Special rules apply if the dwelling is part of a business or held with agricultural land.
An application will have to be made to court for permission to appropriate and
permission will be given only if the remaining assets are not diminished in value or
rendered more difficult to sell.
Tip- the share of an infant under the care of the surviving spouse may be used by the
spouse to appropriate the dwelling if the spouses share is insufficient.
Case law:
Strong v Homes What date is used to value the lrs? Here the testator died testate
without children and the surviving spouse was entitled to half the estate as her legal
right share. However the estate was worth 11m at the date of death and due to the
recession had fallen in value to 6m at the date the probate process was coming to an
end and the executor was transferring assets to the beneficiaries. Was she entitled to
half of 11m ie 5.5m which would then leave the remaining beneficiaries with little or
nothing? The judge decided she was only entitled to 3m as the relevant valuation date
was the date of distribution.
THE RIGHTS OF THE CHILDREN.
What happens to minor children?
If a parent dies leaving a surviving spouse and minor children then the spouse is
automatically the legal guardian of those children until they reach 18 when they are
legally adults and responsible for their own welfare. Tragically however children may
be left without a parent due to a death and arrangements must be put in place for their
welfare and care including management of assets they may have inherited.
Appointment of legal guardian.
A prudent parent with minor children will have made a will in which a guardian of the
children will be named in the event of the death of both parents. This will usually be a
close family member who will take responsibility for the maintenance and welfare of
the child. If no such arrangements have been made then the family may get together
and agree what arrangements will be best for the child. If the family cannot agree then
an application may be made to the courts for appointment of a legal guardian who will
take custody of the child. A judge will take all the circumstances of the case into
account and make a decision based on the best interests of the child. A social worker
will probably be appointed to undertake a home study and report back to the judge
with a recommendation. A judge will also take into account the wishes of the child.
As a surviving child what are my rights?
A child has no automatic rights to a share in the estate of his or her parent. However a
parent has a moral duty to make ‘proper provision’ for a child (whether a minor or an
adult child) and a child has the right to apply to court for a share of the estate where
proper provision has not been made in a will. Various factors will be taken into
account by the Judge when hearing the case such as:
 The amount left to the surviving spouse;
 The number of children in the family and their ages and circumstances;
 The means of the testator;
 The age of the child making the claim and his or her circumstances;
 The amount of any bequest to the child in the will if any;
 Details of any gifts or provision made for the child during the deceased’s
lifetime.
 All of the testators moral obligations;
 Whether there are any special circumstances such as physical or mental
illness.
If there is no will the child is legally entitled to one third of the estate where there is a
surviving spouse. If there is no surviving spouse the child will take all.
TIP - Look back rights.
If a deceased transferred assets during the three years prior to death then the child of
the deceased is entitled to take the value of these assets into account when assessing
the value of the estate if it can be proved that the deceased did this to deprive the
child, for whom proper provision has not been made in the will, of a share in the
estate.
TIP -A child may take a claim if they believe that a sibling has received a lifetime gift
from the deceased which they believe should be taken into account in the distribution
of the residue of the estate.
TIP - A child has only 6 months from the date of the grant within which to commence
the claim in court against the estate.
THE RIGHTS OF CIVIL PARTNERS AND COHABITANTS.
Civil partners:
Persons in same sex relationships may now have their relationship registered and
legally recognised. This gives them the same rights as a spouse where a deceased dies
intestate without children. A civil partnership may comprise only of persons of same
sex. A civil partner will take all the estate where there is no will and there are no
children. The surviving civil partner will also have a spouses right of election and
appropriation.
Curiously, where there are surviving children, the surviving civil partner’s rights are
weakened by virtue of the fact that surviving children have greater rights to apply to
the courts for a share of the estate than children of a marriage.
If there are children surviving then the civil partner, just like a married partner, takes
two thirds and the children share one third between them. However the children born
to the deceased civil partner, unlike children of a married couple, may apply for a
greater share of the estate to the detriment of the surviving civil partner.
In considering a claim from a child of a deceased civil partner a Judge would take into
account:
Provision made for the child by the deceased during his lifetime;
The child’s age and reasonable financial requirements;
The financial situation of the deceased;
The obligation the deceased has to the surviving partner.
A successful claim will probably result in the child’s share of the estate being
increased at the expense of the surviving civil partner as opposed to the other
children. A child will not suffer a reduction in his or her share and will not receive
more than would be available to the civil partner had died without a civil partner
surviving.
Tip: Time limits are critical. A claim must be filed within 6 months of the Grant.
Cohabitants:
A cohabitant may be a same sex or opposite sex couple. The term was more
commonly known as ‘common law wife or husband’ and describes a person who is in
a committed and intimate relationship which is not legalised. While ‘pre-nuptial’
agreements between married couples and between civil partners are not recognised by
the courts, they are legally binding as between cohabiting couples. Therefore
cohabiting couples can agree between themselves what will happen if they split up or
if one of them dies. To qualify as a cohabitant a number of criteria apply. The most
significant is that the couple must have lived together for a period of two years or
more if they are parents of dependent children, or five years or more in any other case.
It remains to be seen how the requirement to be in ‘a committed and intimate
relationship’ will be interpreted. A person who is a qualified cohabitant may be
entitled to apply for a share in the estate of a separated or deceased cohabitant by way
of maintenance, property adjustment order, pension adjustment order or attachment of
earnings. A surviving cohabitant has no automatic right to a share of the estate of a
deceased cohabitant and must apply to court for same. This application must be
lodged within six months of the Grant being issued. A court will take into account all
the circumstances of the case when deciding whether to make provision for a
surviving cohabitant.
CONTACT US
So why not get a no obligation fixed fee quote now. You could save a lot of money.
CALL US 01 6777495 FOR A NO OBLIGATION QUOTE
OR
EMAIL: INFO@PROBATE_SOLICITORS_IRELAND.IE
If you have questions, why not call or email us now without obligation and we will be
happy to answer your queries without charge!