The September Newsletter

Hi there,

We’re more than halfway through September, and my lazy summer days seem like a lifetime ago.

I finished the summer with four nights in Torremolinos with my mother and her seven children — me, my five sisters and my one and only brother. We were there to celebrate my brother’s 50th birthday. My very first brother-in-law, who joined our family 36 years ago, also came along to celebrate his 60th, as did my brother’s wife, Gráinne.

It was the perfect way to finish the summer, and I came home feeling refreshed and ready to begin again.

For me, the 1st of September is always like a second New Year. I find it comforting to get back into a routine — the children back at school, eating well again and returning to normality.

This month, I want to explain something that many people have never heard of until it affects their own family: the legal right share of a spouse.

What Is The Legal Right Share?

Under Irish law, you cannot necessarily disinherit your husband or wife simply by leaving them out of your Will. Even if you are both in agreement about what is to go into your Wills, you still need to be aware of the effect the legal right share could have on your estate.

If you die leaving a spouse and children, your spouse is legally entitled to one-third of your estate.

If you die leaving a spouse but no children, your spouse is legally entitled to one-half of your estate.

This entitlement is known as the spouse’s legal right share. It applies regardless of what the Will says.

Therefore, even if one spouse makes a Will leaving everything to their own children from a previous relationship, their nieces or nephews, or somebody else, the surviving spouse may still be entitled to claim a share of the estate when their spouse dies.

All the surviving spouse has to do is inform the executor that they wish to claim their legal right share. It does not matter that, when the Will was made, the surviving spouse expressed their agreement with its terms. They are entitled to change their mind after their spouse dies.

What If The Couple Was Separated?

This is something that often surprises people.

An informal separation does not necessarily bring the legal right share to an end. A couple may have lived completely separate lives for many years, but if they remain legally married when one of them dies, the surviving spouse may still have an entitlement.

I have met many clients over the years who have been separated for more than ten years. In one case, the lady did not even know where her estranged husband was anymore.

However, when she came to me to make her Will, I had to explain that her estranged husband could return after her death and claim one-third of her estate without even having to go to court to fight for it.

We needed to consider either a divorce, a formal separation which properly addressed their succession rights, or having her husband sign a Section 113 Renunciation, which I explain below.

The executor would be obliged to contact the estranged spouse, inform them of their spouse’s death and notify them of their right to claim their legal right share. Therefore, in the case of that particular client, there would be no way of concealing the entitlement from her estranged husband after her death.

When Does This Commonly Cause Difficulty?

The legal right share often becomes particularly important where two people marry later in life and each has children from a previous relationship.

They may agree that each person’s property will ultimately pass to their own children. For example, the wife may want her assets to pass to her children, while the husband wants his assets to pass to his children.

They may both be completely comfortable with that arrangement when making their Wills. However, simply making Wills which reflect their wishes may not be enough.

If one spouse dies first, the surviving spouse may still be legally entitled to claim a share of the deceased spouse’s estate.

The surviving spouse may be perfectly happy with the arrangement today, but circumstances can change. Relationships can change, financial needs can change and, following a death, a person may simply change their mind.

That can create uncertainty for the children or other beneficiaries named in the Will.

What About Property Inherited By Your Own Family?

The same issue can arise where a married person with no children owns land, a house or other property which came from their parents or their side of the family.

They may want that property to return to their nieces, nephews, siblings or other relatives after their death.

If that person dies without making a Will, their surviving spouse will ordinarily inherit the entire estate because there are no children.

When the surviving spouse later dies, the property may then pass under the survivor’s Will to their own family. If the survivor also dies without a Will, it may pass under the rules of intestacy to the survivor’s relatives.

This could mean that property which came from one side of the family eventually passes entirely to the other side, with the original family receiving nothing.

The property owner may try to prevent this by making a Will leaving the inherited property to their own nieces, nephews or other family members. However, if this leaves their spouse with less than their legal entitlement, the surviving spouse may still be able to claim their legal right share.

Depending on the value of the other assets in the estate, the inherited land or property might then have to be sold or transferred to satisfy that entitlement.

Can A Spouse Give Up The Legal Right Share?

Yes.

Section 113 of the Succession Act 1965 allows a spouse to renounce their legal right share in writing. This can be done before or during the marriage.

A renunciation may be worth considering where:

• Both spouses have children from previous relationships and want their assets to pass to their respective children.

• One spouse wants inherited land or property to remain within their own side of the family.

• The spouses have agreed to keep their assets and succession arrangements separate.

• A Will leaves a spouse less than the legal right share to which they would otherwise be entitled.

However, a Section 113 Renunciation is a significant legal document and should never be treated as a mere formality. Each spouse should obtain separate and independent legal advice so that they fully understand what they are giving up.

It is not enough for spouses simply to tell each other that they are happy with the arrangements. Neither is it enough to record in their Wills that each person wants their own property to pass to their own family.

If your Will leaves your spouse less than one-third of your estate where you have children, or less than one-half where you have no children, you should specifically discuss the legal right share with your solicitor.

Your solicitor can advise whether a Section 113 Renunciation is appropriate and prepare it to reflect your particular circumstances.

A Final Thought..

Making a Will is about more than deciding who you would like to inherit your property. It is also about identifying anything that might prevent those wishes from being carried out.

If you and your spouse have children from previous relationships, have inherited property which you want to keep within your own family, or have agreed that your assets should ultimately pass to different beneficiaries, the legal right share should form part of your estate-planning conversation with your solicitor.

As always, every family and every estate is different. Proper advice now can prevent uncertainty, expense and family disputes later.

I hope you found this helpful. Even if the issue does not apply directly to you, you may know someone who would benefit from understanding it, so please feel free to pass the information on.

Your Exclusive Journey Member Resource

As an exclusive member and owner of The Journey, I am also giving you an example of a Section 113 Renunciation to accompany this month’s newsletter.

You can access the precedent below. It will also remain available in the Resources section of the Members Hub should you ever need to refer back to it.

[ACCESS THE SECTION 113 RENUNCIATION]

Please remember that this is an example precedent provided for your information and reference. A renunciation of a spouse’s legal right share is a significant legal document with serious consequences.

It should not be completed or signed without first discussing your particular circumstances with your solicitor. Each spouse should also obtain separate and independent legal advice before entering into a renunciation.

This is one of the additional resources I provide exclusively to members of The Journey, and I hope you find it useful.

Warmly,
Jacquelyn
xxx