Can cohabiting couple inherit before 2010 Act?

Tue, Feb 26, 2013, 00:00

Q&A:Can you please tell me if I am entitled to my partner’s estate? He was the sole owner of the estate. We have no children together.

He died in 2007. He did not make a will. This was before the Act came into force in 2011, so I am just wondering what I am entitled to. Am I covered in the 1965 Succession Act or do his brother and sister own the estate?

Ms MC, Galway

It is the more recent legislation – the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 – that is relevant here and it appears that you are not covered under its provisions.

It is precisely because people in your position were not covered at all under the old law that the new Act was a critical piece of legislation – particularly in cases, such as yours, where there is no will.

The Act creates the notion of a “qualified cohabitant”. This is a couple who, on dissolution of the relationship, have been together for five years if they have had no children together, or two years, if they do have children. Clearly, “dissolution” would include death.

Dr Fergus Ryan, a lecturer in law at DIT and an expert in the area of cohabitation, notes that, under the Act, a qualified cohabitant can go to court to seek proper provision for themselves. But, he cautions, there is no automatic right to it: it is at the discretion of the court.

If the couple broke up before a person died, the surviving partner would need to show that they were still financially dependent on them.

And even if acknowledged by the court, financial provision might be adversely affected by any children or spouse your partner might have had from a former relationship.

A bigger stumbling block is time.

It appears that a separate qualification to succeed as a qualified cohabitant is that the relationship should still exist on January 1st, 2011, the date the provisions of the 2010 Act came into force.

Clearly, in your case, this was not the case: your partner had died over three years earlier. In general in Irish law, there is no principle of retrospectivity – ie, the law only applies for events after it is activated – although the levy on private sector pension funds broke new ground in this respect.

Separately, even where you do qualify under the new Act, there is a provision that any application for financial provision from an estate for a cohabiting partner must be made within six months of the grant of probate or administration.

While it seems unlikely that you will be entitled to any part of the estate, Dr Ryan counsels that you should certainly seek formal legal advice on the issue – not least because this is relatively new legislation. While Dr Ryan confirms the general view that the relationship would need to be still active on January 1st, 2011, he says the specific part of the legislation relating to inheritance is complex and not always clear.

It may be open to you, having obtained legal advice, to test certain provisions of the Act in court, should you choose.

It is just worth mentioning also that if you owned property together as joint tenants, you would have become outright owner of that property on your partner’s death as it would not form part of his estate, will or no will.

However, from your letter, I am assuming that is not the case here.

Do tax-free State savings hit income limit?

My wife has a question in relation to the income exemption limit of €36,000 for a couple over the age of 65. When she went to the post office a couple of years back, she was advised to put money into “tax-free” An Post savings certificates and bonds. Given that the interest on the An Post State saving certificates and bonds is tax free, should that be included as income in the income exemption computation?

Mr TI, Kildare

The interest is free of tax but Revenue confirm that it must be included in your calculation of gross income for the purposes of ascertaining your position vis-a-vis the income threshold.

* This column is a reader service and is not intended to replace professional advice. Please send your questions to QA, c/o Dominic Coyle, The Irish Times, 24-28 Tara Street, Dublin 2, or to dcoyle@irishtimes.com. No personal correspondence will be entered into.

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