Inheritance and succession rights are an area of family law that many people overlook when separating or divorcing. Yet the consequences of not understanding your rights, or not taking steps to protect them, can be very significant.
Succession Rights in Marriage
When you are married, your spouse has a legal right share of your estate when you die. If you die with a will, your spouse is entitled to one-third of your estate if you have children, or one-half if you have no children. This is a mandatory right, you cannot disinherit your spouse entirely even if you wanted to. They can claim this share even if your will leaves everything to someone else.
What Happens to Succession Rights After Informal Separation?
This is where many people are caught out. If you and your spouse separate informally, that is, you stop living together but do not go through any formal legal process, your spouse's succession rights are completely unchanged. They remain entitled to their legal right share of your estate if you die. This continues even if you have been separated for years, are in a new relationship, and have had no contact with your estranged spouse for a long time. The only things that change succession rights are a formal legal separation with appropriate succession clauses, a divorce, or signing a new will.
What Happens to Succession Rights After a Formal Separation?
A properly drafted deed of separation or judicial separation can include a clause by which both parties renounce their succession rights against each other. If such a renunciation clause is included and properly executed, neither party will have succession rights over the other's estate. However, this is not automatic, it must be specifically included in the separation agreement. If your separation agreement does not contain a succession rights clause, your spouse's rights may remain intact.
After a divorce is granted, succession rights are automatically extinguished. Neither divorced spouse has a legal right share in the other's estate. You are both free to leave your estate entirely to whomever you choose. This is one of the legally significant differences between a judicial separation (which does not automatically affect succession rights) and a divorce (which does).
Why You Need to Make a New Will
Regardless of whether you have separated informally, formally, or are divorced, making a new will is essential. An existing will made before your separation may leave everything to your estranged spouse. Even after a divorce, an existing will might still reference your ex-spouse as beneficiary in ways you would not want. Making a new will after any significant change in your relationship status is one of the most important legal steps you can take.
What About Protecting an Inheritance You Receive?
If you receive or expect to receive an inheritance, it is worth understanding how this might be treated in a future divorce. Inheritances received during a marriage are generally considered separate property, but can be drawn into the marital pot if the other spouse's needs cannot be met without including them. The key is to take legal advice as soon as possible and to keep inheritance assets clearly separated from marital assets.
How Saor Law Can Help
Saor Law provides completely free legal advice to people going through separation and divorce in Ireland. We can help you understand the implications for your succession rights and what steps you should take to protect yourself. Book a free call with our team today.