By Caroline Browne, Partner
Beneficiaries are those persons you wish to benefit under your Will. When making your Will it is important to take into account the rights that beneficiaries and certain individuals may have under Irish law. While you are entitled in your Will to dispose of your assets as you wish, it is important to note and be aware of certain rights that individuals have.
Rights of a surviving spouse
Where there is a Will
If you have left a Will and are survived by your spouse, then your spouse is entitled to what is called a “legal right share” of your estate (provided they have not renounced their rights to your estate). Should you require further information on this matter please contact us to make an appointment to discuss this matter.
In simple terms a surviving spouses legal right share is:
- One-half of your entire estate if you do not have children
- One-third of your entire estate if you do have children
Your spouse can choose to take either the bequest specified under the Will or his/her legal right share. Therefore, if you do not leave anything to your spouse in your Will, your spouse can simply elect to take their legal right share of your estate.
There are strict time frames that a spouse must comply with when exercising their option to take a gift under the Will or their legal right share. It is also important to note that the applicable legislation sets out that the spouse may seek to have the house where they are ordinarily resident, and its contents, transferred to them in satisfaction of their legal right share. There are exceptions to this provision.
Where there is no Will
The rules of intestacy apply. Click on this link and you will see in detail what a surviving spouse is entitled to where there is no Will.
| Who Benefits | Who Administers your Estate | |
| A spouse/civil partner but no children | Your spouse/civil partner gets your entire estate. | Your spouse/civil partner |
| A spouse/civil partner and children | Your spouse/civil partner gets two-thirds of your estate and the remaining one-third is divided equally among your children. If one of your children has died, that share goes to his/her children. | Your spouse/civil partner is entitled to administer your estate, if they do not want to administer your estate, then any of your children (over the age of 18 years) are entitled to administer your estate. |
Rights of a Civil Partner
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 came into effect from the 1st January 2011. This act brought about substantial amendments to the Succession Act 1965 where civil partners are given similar rights to that of a surviving spouse. Under this act rights were given to couples who are not married, including same sex couples. Prior to this Act same sex couples who lived together were treated co-habitees and their was significant tax and financial consequences arose on the breakdown of the relationship or on the death of one of individuals.
Civil partners can now register their civil partnership after certain criteria are complied with. After registration of the civil partnership there are certain rights a civil partner will have which include: rights in relation to the shared house e.g. consent in relation to transfer, sale or mortgage unless a Court dispenses with consent, a maintenance order and rights in relation to a share of the deceased civil partner’s estate as set out below.
Where there is a Will
If you have left a Will and are survived by your civil partner (and your civil partner has not renounced or given up his/her rights to your estate), then that civil partner is entitled to what is called a “legal right share” of your estate. The value of the legal right share depends on whether there are children.
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
Where there is no Will
If you have died and left no Will and are survived by your civil partner (and your civil partner has not renounced or given up his/her rights to your estate), then the rules of intestacy apply. Where a person dies with no Will and leaves a child or children, then his/her surviving civil partner is entitled to two third share of the estate. Where a person dies and leaves no child or children then his/her surviving civil partner is entitled to the entire estate.
It is important to note that a Will can be revoked by a civil partnership. It is extremely important that in the event of a dissolution of a civil partnership that a person makes a new Will.
Rights of a Cohabitant
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 which came into effect on 1st January 2011 introduced legally protected rights for cohabiting couples in long term relationships, whether same sex or opposite sex relationships.
A cohabitant is defined in the Act as “one of two adults (whether of the same or opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within prohibited degrees of relationship or married to each other or civil partners of each other”. For a cohabitant to be a ‘qualified cohabitant’ certain conditions need to be complied with. However, you should note that a cohabiting couple does not have the same legal rights as married couples or civil partners in Irish Law.
There is no automatic right of a cohabitant to a share of a deceased cohabitant’s estate, unlike that of a surviving spouse or civil partner. The Act introduced a right to redress which provides that a cohabitant can apply to the Courts for provision. The Act also allows for a cohabitant to apply to court for a variety of orders where the relationship ends due to a break up or death. A cohabitant who applies for provision to be made for them from the estate of a deceased cohabitant and succeeds can obtain a benefit from a tax point of view (e.g. A cohabitant who receives a gift or inheritance under a Will of a deceased cohabitant has a tax threshold of only €16,604. So any amount received above this amount would be subject to tax at of 33% which can be substantial depending of course on the gift received).If the cohabitant qualifies as a cohabitant they can apply to court and if a property adjustment order is made, there will be no gift or inheritance tax issues on a transfer or capital gains tax payable.
It is important to note that any application must be made within six months of the date of the Grant of Probate/Administration.
Rights of children under a Will
A child does not have any absolute right to inherit their parent’s estate. Where a child or children have been excluded under a parents Will it is possible to make an application to court seeking redress if they feel that they have not been adequately provided by the Will or otherwise by their parent. This type of application is referred to as a Section 117 application.
Note: Section 117 applications need to be made within 6 months of the taking out of a Grant of Probate.
However, you should also note that where one parent passes away and leaves all of the estate to their spouse a child cannot make an application in this situation. If you are considering such an application it is important that you seek expert legal advice. We have considerable experience in dealing with Section 117 applications and can advise you on the process involved and the prospects of success.
Who can make this application?
1. A child who has not been provided for under their parents Will
2. Adopted children, from the date of the Adoption Order. Such children are treated as a child of the adoptive parents.
3. Non-marital children.
4. Under the recent Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 a child of a deceased civil partner can also make a Court application.
If you would like to discuss any issue arising from a Will or deceased’s estate, please contact us to arrange a convenient appointment
