The legal right share: you cannot disinherit a spouse in Ireland

A surviving spouse in Ireland is entitled to one half of the estate where the testator leaves no children, and one third where the testator leaves children. That is section 111 of the Succession Act 1965, and section 111A gives a civil partner the same two figures. Section 112 calls it a "legal right" and gives it priority over devises, bequests and shares on intestacy — over every gift in the will, in other words.

So a will that leaves a spouse nothing does not disinherit them. It simply describes an outcome that will not happen: the spouse elects the legal right share, it comes off the top, and the gifts to everyone you did intend to benefit abate to pay it.

When Part IX applies at all

Section 109(1) applies Part IX wherever a person dies wholly or partly testate leaving a spouse, a civil partner, children, or both. Section 109(2) defines the estate for these purposes as all estate to which the deceased was beneficially entitled for an interest not ceasing on death, after payment of all expenses, debts and liabilities properly payable out of it. It is a share of the net estate, not the gross.

The three ways out — and there are only three

Renunciation. Section 113 allows the legal right of a spouse to be renounced in an ante-nuptial contract made in writing between the parties to an intended marriage, or in writing by the spouse after the marriage and during the lifetime of the testator. Section 113A does the same for a civil partner. Nothing else works: a renunciation signed after death, an oral agreement, or an unsigned understanding is worth nothing.

A court order on judicial separation. Section 14 of the Family Law Act 1995 allows the court, on granting a decree of judicial separation or at any time afterwards, to make an order extinguishing the share either spouse would otherwise take as a legal right or on intestacy, where it is satisfied that adequate and reasonable financial provision exists or can be made, or that the spouse is not one for whose benefit it would make such an order.

Divorce. A former spouse is not a spouse, so section 111 does not apply and no order is needed. But note what does survive: under section 18 of the Family Law (Divorce) Act 1996 a former spouse who has not remarried may still apply for provision out of the estate unless the court blocked that at the time of the divorce, and a gift you actually leave a former spouse in the will still takes effect. Irish law does not read a former spouse out of a will the way English law does.

Separated is not divorced

This is the mistake that costs the most. If you are judicially separated or separated by deed, you are still married, and your spouse is still a "spouse" for the purposes of the Succession Act. The legal right share survives a separation. A deed of separation does not extinguish it unless it contains a written renunciation satisfying section 113. Only a court order under section 14 of the Family Law Act 1995 does that on its own.

There is one further route, but it operates after death and not by the will. Section 120(2) precludes a spouse guilty of desertion which has continued up to the death for two years or more from taking any share as a legal right or on intestacy, and section 120(3) deems a spouse guilty of conduct that justified the deceased in living apart to be guilty of desertion. That is decided by a court on the evidence, not by anything you write.

The two words that decide the size of the gift

Section 114(2) is the trap. A devise or bequest to a spouse is deemed to have been intended in satisfaction of the legal right share — unless the will expressly says otherwise.

Section 114(1) provides that where the gift is expressed in the will to be in addition to the legal right share, the testator is deemed to have given the spouse a sum equal to the value of the share plus the property described.

Leaving the family home to your spouse "in addition to her legal right share" and leaving it to her without those words are two completely different gifts. Say which you mean.

The election, and the clock on it

Section 115(1)(a) lets the spouse elect to take either the gift in the will or the legal right share. Section 115(1)(b) provides that in default of election the spouse takes under the will and takes no legal right share — so silence favours the will.

Section 115(4) puts a duty on the personal representatives to notify the spouse in writing of the right of election, and the right is not exercisable after the later of six months from receipt of that notification and one year from the first taking out of representation.

Where the death is partly intestate, section 115(2) offers a different pair: the legal right share, or the intestacy share together with any gift in the will.

Lifetime giving does not defeat it

Section 121 applies to any disposition, other than a testamentary one or a disposition to a purchaser, under which beneficial ownership vests in the donee within three years before death or on or after death. Section 121(9) expressly treats accrual by survivorship on the death of a joint tenant as such a vesting — so putting the house into joint names is caught. If the court is satisfied the disposition was made for the purpose of defeating or substantially diminishing the spouse's or civil partner's share, or a child's intestate share, it may order that it be treated as a bequest forming part of the estate. The spouse must apply within one year of representation first being taken out.

Children have no fixed share

They have section 117 instead: a child of any age may apply to the court for provision out of the estate where the court is of opinion that the testator failed in the moral duty to make proper provision for the child in accordance with the testator's means. Section 117(2) requires the court to look at it from the point of view of a prudent and just parent, taking into account the position of each child. Section 117(6) gives a hard six-month window from the first taking out of representation. And section 117(3) protects the spouse: no section 117 order may affect the surviving spouse's legal right, or, where the spouse is the child's parent, any bequest to the spouse or share on intestacy.

The honest way to draft it

If you are not going to leave your spouse more than the legal right share, say so in the will. A clause giving the spouse "the share to which my spouse is entitled as a legal right under section 111 of the Succession Act 1965, and no more" is lawful, it is clear, and it lets the rest of the estate be divided knowing what is actually left of it. That is far better than an omission that produces a fight.

Our last will and testament calculates the share, blocks a will that leaves a spouse or civil partner out with no renunciation or court order, and offers the legal-right-share clause as the lawful alternative. For the execution rules, see how to sign an Irish will so it is valid.