Inheritance Rights of Spouses, Civil Partners, Cohabitants and Children
We live in a society with many different types of family units so today I will discuss inheritance rights that apply to different categories of people and family members. The legal landscape has changed with the coming into force of the Civil Partnership Act 2010 so we can examine how this clarifies or perhaps complicates matters.
When a person dies testate (having made a valid will) the will identifies who will inherit the deceased’s assets.
To remind listeners when someone dies intestate (without a will) where there is a:
- Spouse only – the spouse takes the entire estate.
- Spouse and children – the spouse takes two thirds and the children one third between them.
- Children only – the children inherit the estate equally between them.
Do children have the same rights regardless of whether their parents are married or not?
The Status of Children’s Act 1987 – Equality for Children
Up to 1987 our legal system did not recognise the entitlement of children born outside of marriage to share in their parents’ estate.
Example: If a married man died intestate survived by his wife, their children and a child born outside of the marriage his assets would have been divided as two thirds to his wife and one third to his children of the marriage – the child born outside of the marriage would not be entitled to share in the one third. It was an incredible situation and a reflection of where we were as a society up until that time.
The change brought about by the Status of Children’s Act 1987 now means that children, irrespective of the marital status of the parents, are all treated the same.
In today’s terms if a situation arises where a parent dies and has made a will leaving his assets between his children, that will include children of the marriage and children that were born to a relationship outside of the marriage.
When making a will people need to be specific so that they are clear if the will is also intended to benefit children that are not children of the marriage.
Can a child born of a relationship outside a marriage challenge a will in that case i.e. where the parent excludes them?
Yes, in that situation a child can challenge the will in the same way that children of the marriage can. They would do this by making what is known as a section 117 application.
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.
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. In recent years, the High Court has 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 advice of a solicitor. Children have no right to be notified of their rights to bring a claim and they only have six months from the date of Grant of Probate to make a claim.
Do adopted children have rights to both their biological and adopted parent’s estate?
If a child is adopted they cease to be the child of their natural parents and, therefore, have no entitlement to a share in the estate of their natural mother and father.
Situations have arisen where spouses have been excluded from wills – what happens in that situation?
Spouses and the Legal Right Share
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.
The Legal Right Share takes priority over all other bequests in the will, in other words it has to be satisfied over any other provisions in the will.
What is the situation where there is marital breakdown – do the rights of Inheritance and the Legal Right Share survive marital breakdown?
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 a couple’s marriage has broken down but they have not formalised the separation they should take advice because they may want to revise a will that they have made or simply make a will to ensure that they are passing on their assets to the person or people that they want to have them. Remember you cannot get around the legal right share.
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 in Ireland the marriage is dissolved, therefore the spouses lose their rights to their share on intestacy and their Legal Right Share.
The Civil Partnership Act impacted on this area of law – what rights do Civil Partners have?
The area of inheritance and succession has evolved with the enactment of the Civil Partnership Act. We can distinguish between the treatment in the Act between civil partners and cohabitants for the purposes of looking at the changes.
Explain to us again what are Civil Partners?
This is the alternative to marriage offered to couples of the same sex. Same sex couples can be civilly partnered if they comply with the various requirements of the Act:
- Both partners are of the same sex
- Neither partner is married or in another civil partnership
- Parties must not be close relatives
- Three months’ notice must be given to the registrar
- Ceremony is conducted by the registrar of births deaths and marriages
- Two witnesses must be present at the ceremony
What inheritance rights are bestowed on Civil Partners in the Act?
First and foremost 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 revoked so wills should be updated.
In terms of the inheritance rights that are granted to civil partners they 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 excluded.
- 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 partners is entitled to two thirds and between them.
- If there are children only surviving the civil partner then the children take the estate between them.
What rights do Children of Civil Partners have?
They have the same rights and entitlements as children of a marriage.
As I said before in an intestacy situation they will share the estate with the surviving civil partner. If the deceased civil partner made a will and the child is not satisfied about the provision that was made for them, the child can challenge the will by making a section 117 application.
One significant difference between the treatment of the children of a civil partnership and a marriage is that where you have an intestacy situation in civil partnership the children of the deceased civil partner can take a section 117 application.
A similar provision does not exist for children of a marriage – section 117 is only an option if there is a will.
And how then are Cohabitants dealt with in the Act?
Up until 2010 couples living together did not acquire any rights against one another –most people may have thought that couples living together for many years were common law husband and wife and had all the same entitlements as a married couple. Common law couple had no meaning in Irish law and no legal status whatsoever.
We now have rights for cohabiting couples and qualified cohabitants.
Cohabitants are couples who live in an intimate and committed relationship – we are not talking about two friends that share a house.
Qualifying cohabitants are a couple that have been living together for two years or more if they have children together and five years in all other cases.
What happens if one of the Cohabitants dies?
The surviving cohabitant can make an application to the Courts for provision to be made for him/her out of the estate of the deceased partner. If the court decides that provision should be made it cannot exceed the amount that a civil partner or spouse would have been entitled to. If the deceased person makes provision for him/her during his/her lifetime that will be taken into account.
The main difference for cohabitants is that they must take action to claim a share in the estate and there is no specific share or amount that they will get – circumstances will dictate.