A wife has a right to her husband’s money when they are effectively separated

Does my wife have a claim on any money I may get or on any money I might inherit? We live in the same house but in different rooms, sometimes on talking terms other times not. Most of the time we get on fairly well for the children and grandchildren as peace is better than fighting.

Mr P.C., email

In a word, yes. She does have rights to your assets.

I assume you are talking about the situation that prevails when you die. Insofar as you are talking about taking care of her financially during both your lifetimes, that too is, in practical terms, a yes.

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It is always distressing when marriages break up, but you are certainly not alone in deciding there is enough room in the home for you both to lead effectively independent lives in the same property. The cost and emotional trauma that can accompany a more formal break-up can deter many from making that final step to rupture. But it does have implications in terms of what you have you must share, or not.

She may, of course, have access to her own independent income, but in general a married couple would be expected to provide for each other out of available resources.

In more recent years it is more likely that a woman would have her own financial resources, and so be less dependent on a spouse. Yet that was often not the case years ago when women were far more likely to give up work outside the home to care for family.

I am assuming from your very brief description of your situation that you have reached a financial accommodation. If you hadn’t your wife would presumably be advised to seek a maintenance order in the courts, and there is no mention of anything so formal in your arrangement.

Does that mean your wife has automatic rights to particular windfalls or inheritances you receive when you are both still living. No, not really. Such financial resources would only come into the equation if you were to find yourself in court discussing maintenance, in which case a full assessment of your finances would be required.

But presuming you predecease her your wife will have an automatic right to a certain share of your assets. This is called a “legal right share”, and as long as you are legally married there is no getting around it – with one exception. If she had formally renounced her rights to succession in a written legal document then she would not have any automatic right to a share. To be fair, I have to say I have never heard of anyone being in that position. I expect it is very rare, and applies only in very particular circumstances.

Wealth

For what it is worth, should she predecease you, you will also be entitled to a legal right share of any wealth she has – again regardless of what it says in any will.

How much a spouse is entitled to depends on the existence of children and grandchildren.

In sum, if you have left no valid will your wife would be entitled to two-thirds of the estate given that she has children and/or grandchildren. If you had no children or grandchildren she would be entitled to the whole estate in the absence of a valid will.

Assuming you have a will, the situation is slightly different. In this case your wife is entitled to a minimum of one-third of the full value of your estate on the basis that there are children and/or grandchildren around. If there had been no children or grandchildren she would have been entitled to a half of all your wealth.

If you really are intent on avoiding your wife having a legal right share you will need to go through the legal route either of separation or divorce.

It is quite common in a legal separation for both sides to renounce their rights to succession. But, beware, it must be a legal separation. The fact that you are effectively separated for many years – even if you were living apart for many years – would not of itself be enough to evade legal right share.

A decree of divorce automatically ends a former spouse’s entitlement to legal right share – although it is still open to them to petition a court for a share of your estate after you die.

Of course, if you were to separate or divorce a judge would want to be reassured that your spouse was adequately provided for financially, and anything you own would come into that equation of means.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice.