There are important protections in Irish law for partners’ succession rights.
If they have been left out , or not properly provided for in a Will of their deceased partner there are safeguards.
Under the Succession Act 1965, a spouse has certain minimum succession rights.
They are entitled to half of the estate if there are no children.
They are entitled to one third if there are children.
This right cannot be ignored by a Will unless the person concened agrees to waive your rights.
This one-half or one-third share of the deceased’s estate is known as the Spouse’s Legal Right Share.
When is a spouse not a SPOUSE?
There are ways for a spouse to lose their succession rights or protection of the Succession Act and their legal right share.
- a spouse can renounce their entitlement to the legal right share
- a spouse can waive their entitlement to the legal right share
- a spouse can be deemed to be “unworthy to succession” – for example, they murder their spouse.
- a Court can remove the entitlement to the legal right share as part of a Judicial Separation Order.
- Divorce itself removes the person’s right to the legal right share of their former spouse.
- In divorce or judical separation the spouses can agree to renounce these succession rights.
- The spouses can agree to renounce their succession right under a separation agreement.
When a couple is applying for a Judicial Separation, the easiest way to deal with Succession rights is to agree it between the parties.
This can be done by the parties agreeing to a mutual agreement renouncing their rights.
However, if no agreement can be reached, an application can be made to the Court to deal with succession rights as part of the judicial separation.
Such removal of the spouse’s normal entitlement under the Succession Act. will only be permitted provided proper provision has been made for the spouse losing their succession entitlements.
In divorce cases, after the Decree of Divorce is granted, the spouse loses their Succession Act entitlements automatically.
Such former spouse has a further opportunity to make an application for a payment from their former spouse’s estate in certain circumstances.
Such future opportunity can be blocked by an order of the Court in a Divorce.
It is important to remember that a subsequent marriage revokes a will. If one of the parties remarries, any will they previously made would not be valid in any case.
Forgetting to change your will after marriage or divorce
It is extremely impoortant to update your Will after marriage or separation. Failing to do so can cause significant problems down the line.
It is not uncommon for people to make a standard will for a husband and wife which gifts the entirety of your estate to their spouse.
If you subsequently go through a divorce or separation your spouse or partner may may still be entitled to what is gifted to them under the will until you make a new one.
Where there are children it is doubly important to make a will post separation. This is all the more true where one or both parties enter into a new relationship.
It is always helpful to plan for the future with an eye to the present.
For further advice or if you wish to discuss any other legal area please contact [email protected] or telephone 052-6124344.
The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.