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Marital status and inheritance

Information

Your civil status affects your rights to inherit from your spouse/partner. Spouses and civil partners have the same legal right to inherit and the same rights on intestacy. A will is automatically revoked when you marry unless it was made in contemplation of that marriage. A bequest in a will to a person who is a witness to the will or to that person’s spouse is void.

Rules

If you are not married, you may only inherit from your partner if you are left a bequest in a valid will. However, a spouse is entitled to what is called a "legal right share" of their deceased spouse's estate even if:

  • there is no will
  • the will is invalid
  • there is a valid will, but it leaves little or nothing to the surviving spouse.

The marital status of the deceased person may also indirectly affect the inheritance rights of his/her children.

Spousal inheritance rights

The amount of the surviving spouse's legal right share depends on two factors:

  • whether or not there is a valid will
  • whether or not the deceased spouse has any children.

You are entitled to the whole estate if:

  • there is no will or the will is invalid, and
  • the deceased spouse has no children or grandchildren.

You are entitled to two-thirds of the estate if:

  • there is no valid will, and
  • the deceased spouse has children or grandchildren.

You are entitled to one-half of the estate if:

  • there is a valid will, and
  • the deceased spouse has no children or grandchildren.

You are entitled to one-third of the estate if:

  • there is a valid will, and
  • the deceased spouse has children or grandchildren.

If you are the surviving spouse, you must be informed of this right and should apply for your legal right share as soon as possible. You may require that the family home be given to you in satisfaction of your legal right share, even if the home was left to another person under the will. If the family home is worth more than the legal right share, you will normally have to pay the difference into the deceased's estate. However, in cases of hardship, you may apply to the court to have the dwelling house given to you either without paying the difference or by paying such sum as the court thinks reasonable.

Children's inheritance rights

Both marital and non-marital children have equal rights to inherit from their parents. However, non-marital children may have the additional burden of having to prove paternity if it is disputed. Children's inheritance rights maybe affected by their deceased parent's marital status.

The children (minor and adult) are entitled to the entire estate divided equally between them if:

  • there is no will or the will is invalid, and
  • the deceased parent is not married or his/her spouse is already dead.

But the children are only entitled to one-third of the estate divided equally between them if:

  • there is no valid will or the will is invalid, and
  • the deceased parent is married and is survived by his/her spouse.

Children have no absolute right to inherit their parent's estate if the deceased parent has made a valid will. However, if a child considers that he/she has not been adequately provided for, he/she may make an application to court. The child need not be a minor or be dependent in order to use this procedure. The court has to decide if the parent has "failed in his moral duty to make proper provision for the child in accordance with his means". Each case is decided on its merits and the court looks at the situation from the point of view of a "prudent and just" parent. Anyone considering challenging a will on these grounds should get legal opinion before applying to the court.

Civil partnership and inheritance

You can find information on how being in a civil partnership affects your right to inherit in our document on civil partnership and inhertitance.

Page updated: 25 February 2011

Language

Gaeilge

Related Documents

  • Civil partnership and inheritance
    Describes the issues relating to inheritance in civil partnerships.
  • What happens the deceased's estate
    How to get access to the deceased person's money and property, the rights of family members under wills and how property is distributed on intestacy.
  • Making a will
    What is a will? The practical steps involved in making a will and what happens when someone dies without having made a will.

Contact Us

If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm) or you can visit your local Citizens Information Centre.