Separated spouse can inherit unless you formalise the position

I am curious to know if a will which a wife makes still holds while there is no legal separation in place?

Ms M.F., email

There are several situations which automatically make a will invalid and then there are others which can result in a will becoming invalid but do not necessarily make it so. And finally, there is those that fall into a grey area.

Welcome, you find yourself in the grey area.

My aunt never told us that Gran passed away with no will

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Succession is a very important issue in Irish law – determining who will benefit from your estate when you die. Unfortunately, it is one that attracts all too little attention from people. Recent survey evidence suggest that fewer than three in 10 Irish adults have made a will.

And all too often, even when wills are drawn up, they are done in haste in a moment of physical or emotional crisis – not the best plan for such an enduring and powerful document.

At least in this case, there is a will in place. But is it valid?

Probably, yes, but not necessarily.

Apart from errors in making a will, such as drafting mistakes or failure to secure proper witnesses etc, there are three things that will definitely invalidate a will – marriage, divorce and a personal decision by a person to revoke their will.

Again, there are exceptions. People never consider that a marriage – first or subsequent – will invalidate a will but it does, unless the will specifically contemplates marriage to a particular person and that marriage to that person subsequently takes place.

A legal separation does not, of itself, invalidate a will but a judicial separation will certainly address the issue. It will have been up to the parties – in mediation or in the court – to agree to give up any rights of succession, i.e. the right to inherit. If the court feels someone has been provided for sufficiently, it can rule that their rights to inherit are "extinguished".

But the position you are interested in is even more nebulous – an informal separation in the absence of a judicial separation.

The default position here is that the wills of either party, where they exist, remain valid. No active decision has been made to revoke the will or to disinherit the separated spouse. And the fact that they may have lived apart for many years does not, of itself, change the position.

More importantly, regardless of what the will actually says, a spouse or civil partner is entitled to what is called a “legal right share” of the estate of a dead partner or spouse.

What this share actual amounts to depends on whether there is a will in place and whether there are children (or grandchildren) involved.

If there is no valid will and no children/grandchildren, a surviving spouse is entitled to the whole estate – even if they are informally separated.

That drops to two-thirds of the estate if there are children or grandchildren.

In a case like this, where there is a valid will, the surviving spouse would be entitled to half the estate if there are no children or grandchildren and one-third if there are.

So if either party does not want the informally separated spouse to inherit, they would need to get a legal agreement in place.

And there can be a forgotten person in all this: any subsequent partner for either party. With no formal legal marriage or civil partnership – impossible where their partner remains formally married albeit informally separated – they have no legal standing or legal right share. They can inherit only if provided for specifically in a will, and even then only to the extent that it does not deprive the separated spouse of their legal right share.

Messy, isn’t it.

On the flip side, a spouse who deserts or who commits a serious criminal offence against their partner can lose their right to any share in the estate.

Finally, even in the event of a divorce (or a dissolved civil partnership), it can be open to the divorced partner to claim a share of a spouse’s estate subsequently if no specific order barring such a move was made at the time of divorce, or dissolution. Mind you, even if allowed the surviving former spouse or partner would need to show that adequate provision was not made for them at the time of the divorce.

There is a fairly tight timeframe in which to make such an application – no more than six months from the date that probate has been granted and, not surprisingly, there is also a requirement that the claimant has not subsequently remarried or entered a new civil partnership.

Informal separation might be a convenient “Irish” way to address a failed relationship. Some people believe that it can avoid unnecessary personal and financial conflict, especially where there are children involved. But it does leave the door open for all sorts of misunderstandings and grievances down the line – quite apart from denying either party the full freedom to pursue their own lives.

And when it comes to all important – and in Ireland often highly contentious – area of succession, it is very much a grey area as I said.

The best advice is to assume the will is valid and that the spouse retains their legal right share in any case. If this is not what the person wants, they need to get their former spouse/partner to renounce their rights in writing, preferably before a witness, such as a lawyer.