Have you ever heard of the Succession Act 1965, asks Dr Kathryn O’Sullivan of the University of Limerick’s School of Law.
For some it might ring a bell in a distant corner of the brain while for others it may be totally unfamiliar. But the Succession Act 1965 is one of the most important pieces of legislation in Ireland.
As well as giving instructions on how to make a valid will, the Act lays down the rules which dictate how a deceased’s estate should be distributed.
At present, a surviving spouse is entitled to what is known as a ‘legal right share’ when their husband or wife dies having made a will. How big this share is will depend on whether the deceased also had children.
- If a deceased has made a will and is survived by a spouse and no children, the surviving spouse is entitled to one-half of the estate.
- If a deceased has made a will and is survived by a spouse and children, the surviving spouse is entitled to one-third of the estate.
Without a will
A different system operates where a spouse dies intestate – that is, without a will. Again, however, the level of provision will depend on whether the deceased had children.
- Where a deceased dies intestate and is survived by a spouse and no children (or other descendants), the surviving spouse takes the entire estate.
- Where a deceased dies intestate leaving a spouse and children (or other descendants), the surviving spouse is entitled to two-thirds of the estate.
It might seem as though these shares are quite generous but the unfortunate truth is that surviving spouses in Ireland may receive significantly less than spouses in other countries and can all-too-often be left in a very vulnerable financial position.
Consider the following scenario: Patrick and Mary are married with two children. Patrick is the sole-owner of the property. The house is worth €180,000 and the couple have little other assets or savings. What happens if Patrick dies intestate without a will?
No automatic inheritance
Contrary to common belief, a surviving spouse in Ireland does not automatically inherit the family home.
Instead, where the home was held in the name of one spouse, it must be distributed under the Succession Act 1965. In Ireland, as noted, a surviving spouse like Mary will receive two-thirds of the estate. She would therefore be entitled to €120,000 from the estate, equivalent to two-thirds of the house.
Their children would be entitled to share the remaining €60,000 between themselves, the final one-third of the house. There is only very limited opportunity under the 1965 Act for Mary to seek any more provision from the estate should she need it.
Albeit unlikely, if the children wish to ‘cash in’ their entitlement, they may seek the sale of the family home.
By contrast, in England, Wales or Scotland a surviving spouse like Mary would automatically be entitled to the entire estate including the family home.
In these jurisdictions, the importance of ensuring the financial security of a spouse like Mary outweighs the need to provide any automatic entitlement for the couple’s children.
Surviving spouses in Ireland are much more vulnerable under the Succession Act 1965 than their counterparts in other countries, especially on intestacy.
The most obvious way of reducing this threat to surviving spouses must be for all couples to ensure they have made a will making appropriate provision for their husband or wife.
Yet while the public ought to be encouraged to make a will, the reality is that many people will continue to die intestate whether by accident or design.
As our population ages and the costs associated with care of the elderly soar, we need to put pressure on the government to reform the Succession Act 1965 and improve the entitlements of surviving spouses in Ireland.