A will-maker in Ireland has considerable freedom, but that freedom is not unlimited. A surviving spouse has statutory inheritance protections that must be considered when planning the estate. These are different from simply being named as a beneficiary in the will.
The first question is whether there is a valid will. The share arising under a will and the share arising on intestacy are not the same rules, and confusing them can lead to a mistaken plan.
Where there is a will
A spouse's legal right share is generally one-half of the estate where the deceased leaves no children and one-third where there are children. The actual position can be affected by matters such as renunciation, family-law orders and the interaction between gifts under the will and the statutory right.
Civil partners have their own corresponding provisions. Advice is useful where relationships or family circumstances make the calculation less straightforward.
Where there is no will
On intestacy, a surviving spouse generally receives the whole estate if there is no issue. Where there is issue, the spouse generally receives two-thirds and the issue share the remaining third under the statutory rules.
This distinction explains why “my spouse gets everything anyway” is not a safe general assumption. The existence of children, the ownership of assets and the documents already in place all matter.
Consider the home and other assets
The family home may be the largest asset, but its ownership needs to be established. A jointly owned property may pass differently from a home owned solely by the deceased. Mortgage obligations and other claims also need attention.
A will should be planned around the actual ownership position, rather than a rough estimate of the household's combined wealth.
Take advice before limiting a spouse's provision
If you intend to leave less than the protected entitlement, or rely on an agreement made during separation, have the legal position checked. A clause expressing your preference does not automatically defeat the statutory protection.
Where a death has already occurred, obtain advice promptly about the surviving spouse's options and any election or time limit. Do not sign a waiver or distribution agreement without understanding its effect.
Clear advice at the planning stage can help reconcile provision for a spouse with wishes for children and other beneficiaries.
Sources and further reading
- Succession Act 1965 (revised), section 111: A surviving spouse's legal right
- Succession Act 1965 (revised), section 111A: A surviving civil partner's legal right
- Succession Act 1965 (revised), section 67: Spouses and issue on intestacy
- Succession Act 1965 (revised), section 115: Election and rights under a will
General information, not advice on your individual circumstances. Laws and tax rules can change; check the linked official guidance and obtain professional advice where needed.