It will come as no surprise to most people that the relationship between man and wife has been given priority under the Succession Act 1965. The act allows for an automatic right of the spouse to a share of the deceased’s estate upon their death whether or not there is a valid will.

This is referred to as the legal right share.

Under section 111 of the Succession Act your husband/wife is provided for out of your estate,  i.e. your family home, savings etc. This is to ensure that hardship cases do not occur where your husband/wife holds all the property and decides to will it all to someone other than you. While this might sound like an unlikely scenario it is a familiar feature to legal practitioners.

If there is no valid will the deceased is said to have died intestate and if there are also no children the surviving spouse receives the whole estate.  However,  if there are children, then the surviving spouse would receive two thirds of the estate and the children receiving the remaining one third.

In the event that there is a valid will but there are no children then the surviving spouse, if dissatisfied with the terms of the will,  can claim one half of the value of the estate.   But if  there are children  then the surviving spouse, in this situation,  can claim two thirds of the value of the estate.

This spouse’s legal right share has priority over all bequests in a will.  Only the deceased’s creditors have priority over it. In addition, the surviving spouse, if ordinarily resident in the family home at the time of death, has a right to appropriate that dwelling house in part satisfaction of their legal right share.

Many couples who choose to separate do so by way of separation agreement, judicial separation or divorce. In a judicial separation and divorce, the former spouse’s right to a legal right share is generally extinguished (although there are very limited situations where a divorced spouse can apply to the court to seek a share in the estate).

Unfortunately when people decide to draw up a separation agreement themselves they will often neglect to consider the issue. This can lead to cases where though they have been separated for several years, and in some cases decades, the death of one of them still leaves the other party entitled to their legal right share. If you or your current partner is in this position, it is important to review the separation agreement. If there is no written separation agreement then it is in your interest to visit your solicitor to ensure that your former husband/wife renounces any interest they may have to your estate or the appropriate legal action is taken to protect your estate.

-Aoife Thornton