Inheritance rights of cohabiting couples
If you are at least 18 years old and of sound mind, you may make a will. If you later get married or if you entered a civil partnership, that will is automatically cancelled unless it was made with that marriage or civil partnership in mind. However, if you enter into cohabitation (that is, move in to live with a partner), it has no effect on your pre-existing will.
If you are married or in a civil partnership, the Succession Act 1965 gives your surviving spouse/civil partner a legal right to a share of your estate (your possessions) when you die, no matter what you have said in your will.
This does not apply to cohabiting couples. If you are in a cohabiting relationship and you die without a will, your partner has no automatic right to any share of your estate no matter how long you have been together. Items which were jointly owned by cohabitants will automatically pass though to the surviving cohabitant and not form part of the deceased’s estate. However, Capital Acquisitions Tax may be payable.
If you are or have been married or in a civil partnership, your spouse or civil partner may be legally entitled to a share of your estate even though you are now separated from him or her.
Many people are not aware of these issues. It is very important to know your rights if you are cohabiting.
Cohabitants and inheritance tax
Even if your partner has provided for you in their will, you will be treated as strangers for Capital Acquisitions Tax purposes in terms of your inheritance. Cohabiting partners pay tax at 33% on gifts/inheritance over €16,250.
In the case of a cohabiting couple where the surviving partner inherits the family home, the surviving partner may be liable for inheritance tax, unless the surviving partner qualifies for dwelling house tax exemption.
If your partner has not made a willor has not provided for you
A financially dependent cohabitant may be able to apply to the courts for provision to be made for you from the estate of your deceased partner if the relationship ends as the result of death or otherwise. This is known as the redress scheme for cohabiting couples. If you get redress by a court under this scheme, you may be exempt from paying Capital Acquisition Tax.
In order to apply for redress you must be a qualified cohabitant, that is, you must have been:
- Living with the person for at least 5 years in an intimate and committed relationship or
- Living with the person for 2 years in an intimate and committed relationship if you have had a dependent child with your partner
If you do qualify to apply under the redress scheme, you still may not be entitled to any provision or share of your partner’s estate if they die. Much will depend on the financial relationship between you and your partner, each partner’s financial circumstances, whether your partner was still married or had children and the size of the estate your partner leaves.
Cohabitants can enter into a “cohabitants’ agreement” which will govern your financial responsibilities to one another. To be valid, the cohabitants’ agreement must be in writing and signed by both cohabitants. Both of you must have received legal advice before entering into the agreement. Preferably, each cohabitant will have received separate legal advice.
A cohabitant’s agreement can specify that either party cannot make an application under the redress scheme. However, a court can override this in exceptional circumstances where it would cause serious injustice.
It is very important to discuss the matter of inheritance during your relationship with your partner and seek legal advice.
Making a will
can ensure that proper arrangements are made for your partner and dependants and that your property is distributed in the way you wish after you die, subject to certain rights of spouses/civil partners and children. Tax planning advice can help reduce or minimise the amount of tax your beneficiaries must pay. A solicitor can help you draft a will or you can draft one yourself.
Children's inheritance rights
Children, whether born inside or outside marriage or adopted, have the same inheritance rights in respect to their parents' estate. There is more information on inheritance rights in the document on what happens the deceased's estate.
is available on the Law Society website.
FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.