Most people assume that a will has the final say on who inherits what. In Ireland, that is not quite the case. A married person cannot write their husband or wife out of their will, because the law reserves a fixed portion of the estate for a surviving spouse. That protected portion is called the legal right share.
A misconception our wills & probate team often encounter is that a long separation, or a firmly worded instruction in a will, is enough to remove it. Usually, it is not.
What the legal right share is
The entitlement comes from section 111 of the Succession Act 1965. Where somebody dies leaving a valid will and a surviving spouse or civil partner, that spouse is entitled to:
- one half of the estate, where the deceased left no children
- one third of the estate, where the deceased left children
The share is taken from the net estate, meaning what remains once debts, funeral expenses, and the costs of administration have been paid. It ranks ahead of the gifts set out in the will, so where the estate cannot satisfy both, the legal right share is met first, and the other bequests are reduced.
No court application is required. The entitlement simply exists, which sets it apart from a claim by a child under section 117, where the child must persuade a court that a parent failed in their moral duty.
Where there is no will
The legal right share applies only where there is a will. On an intestacy, a spouse is treated more generously, taking the whole estate where there are no children, and two-thirds where there are children.
Choosing between the will and the share
Where a will leaves a spouse less than the legal right share, the spouse may elect to take the share instead of whatever the will provides. Where the will is more generous, the spouse keeps the larger benefit. The executor has a legal duty to notify the surviving spouse of this right of election in writing.
Timing is important. The election must be made within six months of receiving that notification, or within twelve months of the grant of representation first issuing, whichever is later. We usually advise spouses to take advice well before those deadlines, because the choice is final once made and the two options can differ considerably in value.
The family home
A surviving spouse may also require the personal representatives to transfer the home in which they ordinarily lived, along with the household contents, in satisfaction of the legal right share. The same time limits apply. If the property is worth more than the share, the balance is normally paid into the estate, although a court may reduce that payment in cases of hardship.
When the legal right share can be lost
The entitlement is strong, but it is not absolute. It can be lost where:
- the spouse renounces it in writing, which commonly happens in a pre-nuptial or separation agreement
- succession rights have been extinguished by court order on judicial separation
- the marriage has ended in divorce, which brings the entitlement to an end
- the spouse deserted the deceased for two years or more before the death
- the spouse is guilty of the murder, attempted murder, or manslaughter of the deceased
An informal separation, by contrast, changes nothing. Couples who have lived apart for decades without a formal agreement or court order often remain each other’s legal heirs.
Cohabiting partners have no legal right share at all, however long the relationship lasted, and must apply to court under the redress scheme for qualified cohabitants.
Speak to our wills & probate team
Whether you are making a will, administering an estate, or weighing up an election as a surviving spouse, mistakes here are difficult to undo. The wills & probate team here at McCarthy + Co Solicitors LLP will explain exactly where you stand and what your options are.
Contact us today for a confidential, no-obligation consultation using our quick online form.
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