Christopher Lehane, barrister, author and expert in succession law, provides a guide on inheritance rights in the case of a person dying intestate. He outlines the rights and laws of the descendant and relative of the deceased and their share of the estate.
If a person leaves a will, or testate (that is, dies leaving a testament), his assets will be distributed according to his instructions. When a person passes away intestate, that is without leaving a valid will, the law governs how his assets are distributed. In Ireland, Part VI (Sections 65-73) of the Succession Act of 1965 sets out the rules for distributing assets in the event of intestacy. This applies to estates of deceased persons who died intestate following 1/1/67.
It was the first time that the laws governing devolution [1], and distribution of personal and real property belonging to an intestate were consolidated. This simplified the law. The Act also made significant changes to the rights of those inheriting intestacy. These had remained unchanged since 1695, when the Statute of Distributions Act (Ireland), codified intestate laws in Ireland. While intestate succession is much simpler now, it is still necessary to know the laws prior to the Act’s commencement when dealing with intestate deaths prior to 1/1/67.
Intestacy law (and probate law) has two cardinal rules: (1) interest is determined at the date of death of the deceaseda href=”#_ftn3″ name=”_ftnref3″>sup>[3]/sup>/a> and (2) granta href=”#_ftn4″ name=”_ftnref4″>sup>[4]/sup>/a> follows the Intestacy law and probate law have two fundamental rules: (1) the interest of the deceased is determined by his date of death [3], and (2) the grant [4] will follow. The date of death is the time when the interest of anyone to inherit will be determined. We mean by’Next-of-Kin’ inheriting on intestacy that the closest circle of relatives, who were alive at the time of the death of the deceased person, will inherit the entire estate upon death to the exclusions of any further circles. The inheriting kin have the right to claim the grant.
Priority of inheritance [5] on death after 1/1/67:
|
Deceased |
No relatives living at the date of death |
Relatives entitled to inherit |
| Married/civil partner | No issue | Spouse/civil partner (CP) |
| Married/CP | Spouse/CP 2/3 – children 1/3 | |
| Married/CP | Without child | Spouse/CP 2/3 – grandchildren 1/3 |
| Married/CP | Without grandchild [6] | Spouse/CP 2/3 – great grandchildren 1/3 |
| Widower/bachelor/Not CP | No issue | Parents are equal |
| Widower/bachelor/Not CP | No issue or Parent | All brothers/sisters are equal |
| Widower/bachelor/Not CP | Parents, brothers or sisters are not included in the list. | Both nephews and nieces are considered equally |
| Widower/bachelor/Not CP | Parents, siblings, nieces or nephews, and parents are all included in the same category. | All grandparents are equal |
| Widower/bachelor/Not CP | Parents, siblings, nieces or nephews, or grandparents can all be considered without issue. | Both uncles and aunts are equally important |
| Widower/bachelor/Not CP | Without question, parent, sibling, niece or nephew, grandparent, uncle or aunt | Grandparents are equally important |
| Widower/bachelor/Not CP | Whether it is a parent, a brother or sister or if it is neo-parent, a grandparent, an uncle or aunt, or ggrandparent, there will be no issue. |
First cousins are great uncles, great aunts and first cousins
All Grandnephews, and Grandneces are treated equally |
| The Succession Act, S. 71, provides rules for distribution. |
The Irish rules on distribution of intestacy after 1/1/1967 for those who died intestate are similar to the English and Welsh rules, but there are four important differences.
- Spouse/CP is entitled to the entire estate upon death of a spouse/CP who was alive and without issue at his death date, regardless of its value or type.
- Shares are always divided 2/3:1/3, regardless of the value or type estate, when a spouse/CP passes away with an issue.
- Half-blood relatives [7] are entitled to the same rights as their full blood relatives.
- When collaterals are present (relatives who are neither direct lineal ancestors or direct lineal descendents, e.g. When collaterals (e.g., nephews, nieces and first cousins) are of equal relationship to the deceased at the time of death, they will be preferred over that direct lineal descendant.
Per Stirpes Rule
Per stirpes is an exception to intestate rules that state to inherit by intestacy one must be alive in the circle of the deceased’s nearest kin at the time of their death. interest will then be determined at that date. It allows the kin to inherit the share that would have otherwise lapsed if their parent had predeceased the deceased. This rule applies to two situations where the circle of kin:
- The issue of inheriting a deceased individual
- The brothers and sisters who inherit from a deceased individual
Two conditions must be met in order for the per-strupes rule to apply.
- The deceased’s child is the only one who survives.
- The deceased’s child survives, but the issue is still alive.
If the deceased has no children, all grandchildren will share in the estate. If the deceased child has no issue at the time of the deceased’s passing, the children who survive will share the estate equally.
In order to inherit the estate of the deceased, regardless of when they died, the person must be the nearest blood relative of the deceased who was alive at the time of his death. Kinship is based upon blood relationship.
The rule is applied differently in this circle of kin than it was in the issue circle of kin. In the brother/sister case, one sibling must survive, and the other sibling must predecease deceased. This leaves children alive on the date of the death of the deceased. The rule is different in this circle than in the issue circle. In the issue circle, the rule is applied to all the children of the deceased, regardless of whether they are still alive or not.
If the deceased sibling has no children alive, then the share of that sibling is divided between the surviving siblings and the nephews or nieces of any deceased sibling’s child who preceded the deceased. Grandnephews and grandnieces don’t inherit per stirpes.
Non-Marital Relationships
In Ireland, the Status of Children Act of 1988 abolished the status of illegitimacy. The Act is applicable to intestate succession if a deceased person died intestate on or after 14/6/88. The Act’s Section 3 states that “in determining any relationship, for the purposes of the Act, or any Act of the Oireachtas, passed after the commencement of the section, the person’s relationship with his father and/or mother (or both of them), shall be determined, regardless of whether the father and/or mother were married to each other, and all other relationships[8] will be determined accordingly.”
In wills made after 14/6/88 the Act will apply. Any references to child or “issue” in these wills will be interpreted as including non-marital issues/children. The Act can be excluded by the testator. If a will is made after 14/6/88, it will only apply to marital children/issue.
Adoption
The adoption order or recognition of intercountry adoption outside of Ireland is the date that an adopted child becomes the child and not of anyone else . The adoption order, or recognition of an international adoption outside of Ireland, terminates all legal relationships between the child’s natural parents. All rights and obligations (including succession rights and obligations) between the parties are also terminated.
Civil Partnership
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, (2010 Act), established a scheme for registering same-sex relationships and outlined the rights and responsibilities of civil partners who registered under the Act. These rights and responsibilities are similar to those of spouses. The 2010 Act, Part 8, outlines the rights of a civil partner who survives his partner. It is almost identical to the rights of succession of spouses [10]. In the Succession Act, the words “civil partner”[11] are inserted after all references to spouses. This gives civil partners the same rights as spouses under that section.
The children of a deceased civil partnership are granted a similar right to a Section 117 Succession Act application to increase statutory provisions on intestacy of their deceased parent’s Estate where he can demonstrate that his deceased parent failed in his moral duties to provide adequate and just provision in his lifetime or upon death. [12] Since the Marriage Equality Act of 2015 was enacted on 16/11/15 in Ireland, no new civil partnerships have
Same Sex Marriage
Marriage equality act 2015 is in effect as of 16/11/15 and allows same-sex couples to legally marry in Ireland. They are entitled to the same rights and responsibilities towards each other that opposite-sex couples have.
Cohabitants
Section 194 of Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, gives a qualified cohabitant the right to ask the court to make ‘proper provision’ for him from the estate of their deceased cohabitant based on the dependency factors listed in the section.
Conflicts of Laws
Ireland, just like the UK refused to opt in to the EU Succession Regulation which entered into force on August 15, 2015. Like the UK, Ireland’s conflict rules state that intestate inheritance of moveables will be determined by the laws of the domicile at the time of death and intestate inheritance of immovables will be determined by the laws of the location where the property is located.
The EU Succession Regulation does not apply to Ireland or the UK, but Articles 21 and 22, which are part of the Regulation, allow citizens of these two countries who have assets in participating EU countries the option of choosing the law of their country of nationality, at the time of death or will-making, to govern their inheritance ‘as whole’. All matters of testate succession and intestate inheritance relating to their immovable and moveable assets. It is especially beneficial to Irish and UK testators, as they can avoid the forced heirship laws of civil law jurisdictions.
Christopher Lehane is a Barrister
Law Library, Four Courts, Dublin 7, D07 N972, Ireland
Tel: +353 87 650 2656
Christopher Lehane has been a practicing barrister in Ireland since 1995. He specialises in succession law, insolvency and mediation. He is also a pension trustee (QPT IIIPM), project manager (IPMI) and a mediator. He was admitted to the bar in 1983, and began his practice in 2020 after retiring from the High Court of Ireland where he served for 42-years. He served as a consultant on probate to the Law Society of Ireland, where he was a member for 15 years. He has also written a book that is a comprehensive analysis of Irish succession law.
[1] Devolution is the transfer of property from a person who has died to a living person. Distribution law determines the way and whom the property will be distributed. In this context, devolution is the transfer of property from one person to another. The legal personal representative is required to distribute the estate property to the next of kin in accordance with the deceased’s will or intestacy.
[2] The spouse or civil partner of a person is not a kin , as they are not blood relatives and their succession rights come from the marriage/civil partnership.
[3] The child who is in the womb of the deceased at the time of his death, will be deemed to have been born during the lifetime of the deceased and survive him once. He actually survives the dead. The Succession Act of 1965, Section 3(2), states that “descendants or relatives of a dead person who were born before his death, but alive afterward, shall be regarded for purposes of this Act as having been born during the lifetime of the decedent and as having succeeded him.”
[4] Grant of Administration- In cases where the deceased only owned immovables and, in some instances, also had moveables. When account balances exceed EUR10,000, and financial institutions demand funds to be released, it is necessary to obtain a Grant of Administration either from the Probate Office of Dublin or local probate registry.
[5] The table refers to both males and females.
[6] Notice that “Issue is a man indefinitely” I.e. As long as the man has a child/grandchild/etc. If a man dies with his spouse and a child/grandchild alive, the child/grandchild will inherit the 1/3 share, while the spouse gets the other 2/3.
[7] “Half-blood” is a relative who shares a parent with the deceased. This is different from step relatives, who do not share a parent and therefore have no common blood.
[8] This means that the succession rights of the child to his kin and to their kinsmen who are distantr than him, as well as to them, are determined regardless of whether or not the parents of the child were married at the time of birth.
[9] Sections 60, subsections 1, 2, and 5 of the Adoption Act 2010, which Act consolidated adoption law.
[10] Section 73 in the 2010 Act inserts a section 67A to the Succession Act which confers succession rights upon death on a surviving civil partnership.