Rights of spouses, civil partners, cohabitants and children
As a surviving Spouse what are my rights?
A surviving spouse rights in Dublin has a special status under Irish inheritance law and is afforded special protections whether the deceased spouse died with or without a Will.
Legal Right 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 legal right share then an application may be made to include the value of those assets in the calculation of the value of the legal right share. 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 entitled to receive 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.
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 legal personal representative must notify the spouse of her right to a legal right share.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 in Dublin 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 legal right share of the estate then the surplus value will have to be purchased by the surviving spouse from the estate. The spouse’s 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.
Strong v Homes: What date is used to value the legal right share? 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 i.e. 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.
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 in Ireland will take all the estate where there is no will and there are no children. The surviving partner will also have a spouses right of election and appropriation.
Curiously, where there are surviving children, the surviving spouses rights in Dublin 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.
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.
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 rights of the child case in Ireland 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 or children 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.
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