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Rights of a Spouse or Civil Partner
Your spouse or civil partner* is entitled to what is known as a "legal right share" of your estate, despite what you may have specified in your Will. This legal right share is:
- One-half of your estate if you do not have children
- One-third of your estate if you do have children
This legal right share will always apply if you have left a Will unless:
- your spouse or civil partner has renounced or given up his/her rights to your estate
- is "unworthy to succeed" in legal terms.
Being judged unworthy to succeed is relatively rare and would arise, for example, if the surviving spouse or civil partner had committed murder or a serious crime against the deceased. It could also apply if the spouse or civil partner had deserted the deceased for at least two years before death.
If what you have bequeathed to your spouse or civil partner in your Will is less than the legal right share, he/she does not have to go to court to claim their legal right share, as the executor is obliged to grant this share where applicable.
To overcome this, a spouse or civil partner can renounce his/her rights to the legal share. This can form part of an agreement prior to or after the marriage or civil partnership. Renunciation can be appealed, however, if there is evidence of undue influence or that it was misunderstood. If a couple separates, a renunciation of each other's right to the legal right share is usually included in a separation agreement. Divorce or dissolution of a civil partnership automatically ends spousal succession rights.
*Following the commencement of the Marriage Act 2015 on 16 November 2015 which provides for same sex marriage in Ireland, civil partnerships can no longer be registered. Therefore, the reference to ‘civil partnership’ only applies if the partnership was registered before 16th November 2015. If you were in a civil partnership prior to this date you can apply to marry. If you do so, the civil partnership is automatically dissolved.
Rights of a Cohabitant
Cohabiting partners (not married) have no automatic legal right to each other's estates. You can make a Will that favours your partner but this Will won’t overturn the legal rights of a spouse or civil partner.
Since the introduction of The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, there is now redress for cohabiting couples. To apply for provision to be made from the estate of your deceased partner, you must first be a “qualified cohabitant” i.e. you must:
- Have been living with your partner for at least 5 years, or for 2 years if you have a child together.
- If one of you is still married, then neither of you may be a qualified cohabitant until the married person has been living apart from his/her spouse for at least 2 of the previous 3 years – in effect, until he or she is entitled to seek a divorce.
The phrase “common law husband/wife” has misled many people into believing that they have automatic rights to their partner’s estate but this is not the case. The only way of securing your partner’s future and that of any children you may have, is to plan for it by putting arrangements in place with your solicitor.
Our advice is don’t rely on redress after the worst has happened. Be proactive, take control and make a Will. This will avoid a costly and stressful situation in the future.
Rights of Children
Unlike a spouse or civil partner, your children have no right to a minimum “legal right share” in your Will. So whatever provision you make for your children in your Will, that is what will apply. All children are treated the same, whether born inside or outside of marriage; or adopted. The age of children is irrelevant.
If a child feels that he/she has not been adequately provided for, they can make an application to court. This application must be made within 6 months of the taking out of the Grant of Representation. (This is the document granted by the High Court which gives authority to a named person i.e. the executor, to deal with the deceased person’s estate.)
Each case is considered independently by the court, who must decide if the parent has failed in his/her moral duty towards the child in accordance with the needs of that child.
The legal right share of the spouse cannot be compromised in order to increase the share left to the child. However, the legal right share of a civil partner can be reduced in order to benefit the child.
Family circumstances are varied and individual. It is vital to discuss your circumstances with a solicitor and ensure that proper provision is made for you and your loved ones. Contact us today.