Under the Succession Act 1965 (‘The Act’), the surviving spouse is given special protection upon the death of his or her spouse. The purpose of this protection is to protect the surviving spouse from disinheritance and to ensure that they are made aware of their rights under the Act. These protections are not provided to any other category of beneficiary under the Act.
According to Section 111 of the act, if a Testator (i.e. a person who has made a valid Will) leaves a spouse but no children, the surviving spouse shall be entitled to one half of the Estate. If however, the deceased leaves behind a spouse and children, then in that case the spouse shall be entitled to one third of the Estate.
Matters are less complicated in the case of intestacy (i.e. where no valid will has been made). The Rules of intestacy are laid out in Part VI of the Succession Act and they provide a fixed method of distributing the deceased’s Estate which vary depending on what family members are left surviving.
The right of the spouse to their legal right share under S111 will rank after the rights of creditors of the deceased but before all other beneficiaries. Therefore if X dies and his will makes no provision for his wife Y but leaves his entire estate between his two brothers A and B and also owes debt to a ZBank , then, in accordance with S117 ZBank will be entitled to recover the debt owed as a matter of priority, Y is then entitled to one half of the remaining Estate meaning that A and B will only be entitled to share the remaining one half share of the remainder of the Estate between themselves.
If a situation occurs where a Testator dies fully testate leaving a bequest to his spouse, then according to Section 115 of the Act, the surviving spouse may choose between her legal right share entitlement and the bequest under the will. This is known as the right of election. If the surviving spouse elects to take her legal right share then it is often the case that certain beneficiaries under the Will may lose out on what was intended for them. Unfortunately, the aggrieved beneficiary will not receive any compensation for their ‘loss’.
Under Section 56 of the Act, where the Estate of a Testator includes a dwelling (family home) the surviving spouse may elect to appropriate that property towards the satisfaction of his/her legal right share.
Notwithstanding the protections provided by the Act, a surviving spouse may elect, during their lifetime to renounce their entitlement to a share of their spouses Estate. This must be done in writing, either by prenuptial or post nuptial agreement and is known as a ‘renunciation’. If a surviving spouse elects to disclaim any inheritance or entitlement on the death of their spouse then this is known as a ‘disclaimer’ and must be in writing.
It is the obligation of the Executor of the Estate to inform the surviving spouse of his or her entitlement to their legal right share of the deceased’s Estate. If you have any queries in relation to your Will or if you are interested in making a Will please do not hesitate to contact me. You can call the office at 01 6797930 to make an appointment or email me directly at Nessa[at]brophysolicitors.ie.