When a married person dies, their spouse has important legal rights to their estate. These rights apply whether the deceased left a Will or died without making one.
The amount a surviving spouse is entitled to depends mainly on whether there is a valid Will and whether the deceased had children.
In Ireland, these rights are known as succession rights and, where there is a valid Will, the spouse may be entitled to a legal right share.
What is a legal right share?
A legal right share is the minimum share of an estate that a surviving spouse or civil partner is entitled to receive under Irish succession law, regardless of what the deceased has provided for them in their Will.
The amount is:
- One-half of the estate if the deceased had no children.
- One-third of the estate if the deceased had children.
This right applies even if the Will leaves the spouse less than their legal right share, or does not provide for them at all.
For example, if a person dies leaving a spouse and children but their Will leaves everything to someone else, the surviving spouse is still entitled to their legal right share of one-third of the estate.
What if the Will leaves something to the surviving spouse?
If the Will gives the surviving spouse a gift, the spouse generally has a choice between accepting that gift or claiming their legal right share.
The executor must inform the surviving spouse or civil partner in writing of their right to make this choice.
If the gift in the Will is less than the legal right share, the spouse can generally claim the difference from the estate. If the gift is greater than the legal right share, they can choose to accept the larger gift under the Will.
There are also time limits that apply when claiming a legal right share. A surviving spouse should take legal advice promptly rather than assuming that the entitlement will be dealt with automatically.
Can a spouse keep the family home?
A surviving spouse or civil partner may ask for the family or shared home to be transferred to them as part of their legal right share.
If the value of the home is greater than the spouse’s legal right share, they may normally have to pay the difference into the estate.
There are circumstances where a court may allow the home to be transferred without the full difference being paid, particularly where requiring payment would cause undue hardship.
The position can depend on the circumstances of the estate, the value of the property and the other assets involved.
Can a spouse give up their inheritance rights?
A spouse or civil partner can, in certain circumstances, renounce their legal right share.
This can arise through an agreement or other legal arrangement, but giving up inheritance rights is a significant decision. Anyone considering doing so should obtain independent legal advice before signing anything.
There can also be circumstances where succession rights have been affected by separation, divorce or a formal separation agreement.
What if the couple were separated?
Being physically separated does not necessarily mean that a spouse has lost their succession rights.
If a couple were living apart but had not legally separated or divorced, the surviving spouse may still have succession rights.
A formal separation agreement or court order may have dealt with those rights. Following a divorce, a former spouse does not have the same automatic succession rights as a married spouse.
This is one reason why the circumstances of the relationship should be considered when dealing with an estate.
What should a surviving spouse do?
If your spouse has died, the first step is to establish whether there is a valid Will and what it provides.
The estate will then need to be administered by the executor named in the Will or, where there is no Will, by an appropriate administrator.
If you are the surviving spouse, you should make sure you understand:
- whether there is a valid Will;
- what the Will leaves to you;
- whether you are entitled to a legal right share;
- whether you want to accept a gift under the Will or claim your legal right share;
- what happens to the family home; and
- whether separation, divorce or another agreement affects your succession rights.
The rules surrounding an estate can become more complicated where there are significant assets, property, children from previous relationships, business interests or disputes between beneficiaries.
Get legal advice about your inheritance rights
The death of a spouse can raise important questions about the family home, savings, property and other assets. Understanding your legal entitlement early can help avoid problems when the estate is being administered.
Carol McCormack Wills Solicitors in Carrick-on-Shannon can advise on Wills, succession and the administration of estates. If you have recently lost your spouse or want to understand your succession rights, contact the office to discuss your circumstances.
Also Read: What happens if you die without a will in Ireland