As commonly encountered in practice, many are unaware of their entitlements and are reluctant to appear insensitive by inquiring.
Sadly, many of the bitter inheritance disputes are the product of distrust and poor communication, borne of a lack of appreciation for each parties’ rights. Questions concerning a person’s rights, whether there is a will or not, can give rise to much complexity, particularly given change in recent years that has extended inheritance rights to both civil partners and cohabitants.
Unfortunately, comprehensive advice as to the full extent of one’s rights as a beneficiary requires more elucidation than the mere sense conveyed here.
Nonetheless, it is possible to make sense of what can seem to be a labyrinthine landscape whether you are a spouse/ civil partner, child, cohabitant, or other relative of a person recently deceased.
If a lawfully married spouse dies with or without a will, the surviving spouse will be entitled to a fixed share of the estate. Similarly, recent law requires that a surviving civil partner will enjoy the same rights.
The existence of a will has a bearing on the proportion of the inheritance that a spouse/ civil partner is, at minimum, entitled to. This may vary depending upon the existence of children. If a spouse/civil partner dies having made a will (’testate’), irrespective of its contents, the surviving party is entitled to their ‘legal right share’.
This amounts to half of the estate but only one- third if there are children. If bequeathed a gift in a will, a spouse/civil partner may choose between either that gift or their legal right share.
Conversely, where a deceased dies without a will (’intestate’), there are clear statutory rules as to the entitlements of the spouse/civil partner. If there are no children, the spouse/civil partner will take the whole estate, but only two-thirds if there are children.
Section 117 of the Succession Act, 1965, provides that children of a deceased may commence proceedings seeking provision out of their parent’s estate. A parent has a moral duty to make proper provision for their children in accordance with their means, whether by way of a will or during their lifetime. A court will consider such a claim from the point of view of a prudent and just parent.
Crucially, an action must be commenced within six months from the time that the representatives of the estate obtain authority from the Probate Office (a ‘grant’).
If a deceased dies without making a will, their children are entitled to a statutory share of their parent’s estate, depending upon the existence of other children or spouse/civil partner.
Recent legislation has enshrined succession rights for people who are not married or civil partners, but who are living together as a couple. In seeking provision out of their cohabitant’s estate, a qualified cohabitant must:nhave been in a relationship of cohabitation with another adult; nand immediately before the time the relationship ended, were living with the other adult for a period of: two years or more, where there are dependent children, or five years or more, in any other case.
A claim must be commenced within six months of the date of the grant.
Unlike the statutory rights as enjoyed by spouses, civil partners, children, and cohabitants, other relatives of the deceased enjoy no such statutory benefit. This lack of protection in no way affects an entitlement to any gift that a deceased may have left any person under a will. However, on intestacy, other relations may benefit if they are the closest surviving next-of-kin.
Karl Dowling and Robert Grimes are barristers and authors of The Irish Probate Practitioner’s Handbook. Grimes is also the author of Your Inheritance Rights in Ireland