To the newcomer, The question of inheritance and succession isn’t the most obvious point of debate when it comes to divorce in Ireland. However, as experienced family law solicitors, we find that clients frequently ask two key questions:
- I have or will inherit a substantial inheritance. Will my soon-to-be ex-spouse have a claim on this money or asset?
- I am separated from my spouse but have never formally divorced. I want to leave my assets in my will to my children or new partner. What is the legal position?
Below, we address these important questions to help you understand your rights and obligations.
Let’s answer the first question.
Can My Ex-Spouse Claim My Inheritance During a Divorce?
In general, inherited assets are considered the property of the individual who received them and are not automatically included in the division of marital assets during a divorce. However, this is not an absolute rule. Irish courts assess each case individually, and the treatment of inherited assets depends on several key factors.
Key Considerations for Inherited Assets
- Length of the Marriage: A short marriage where one spouse inherited assets is treated very differently from a long marriage where inherited assets, such as a family farm, have been central to the couple’s financial landscape for decades.
- Proper Provision: Courts are obligated to ensure proper financial provision for both spouses. If inherited assets are required to meet these needs, they may be included in the marital pool.
- Case Law: Legal precedents play a significant role in determining outcomes. For instance, in the case of HN v BN, a husband of six years was awarded 32% of the total assets, which primarily comprised his wife’s inherited family farm worth €2.6 million.
When Inherited Assets Are at Risk
Inherited assets are more likely to be included in the marital pool when:
- They are the only substantial resource available to meet the financial needs of both spouses.
- They have been used for family purposes, such as paying off a mortgage, renovating a shared home, or supporting household expenses.
For example, consider a case where a family home is valued at €400,000 with a €200,000 mortgage. If the husband inherited €200,000, the court might order him to use €100,000 to reduce the mortgage, enabling the wife to take over the remaining loan and retain the home. This solution could allow the husband to be removed from the mortgage, freeing him to secure new housing and a separate financial future.
Practical Advice
Every situation is unique, and the courts balance fairness with the specifics of each case. If you are concerned about how your inheritance might be treated during a divorce, it is crucial to seek professional legal advice. Acting promptly, particularly if you expect to inherit assets in the future, can help safeguard your financial interests.
What Happens to My Will If I Am Separated but Not Divorced?
One of the most commonly overlooked issues in Ireland is the impact of informal separation on inheritance rights. If you are legally married but not formally divorced, your spouse retains significant rights to your estate, even if you have been separated for years and have no ongoing contact. This is why many clients eventually decide to formalize their separation or divorce—to prevent unintended consequences for their loved ones.
The Legal Right Share
Under the Succession Act, a spouse is entitled to a share of the estate, regardless of what your will states:
- If there is no will and no children, the spouse inherits the entire estate.
- If there are children, the spouse inherits two-thirds of the estate, and the children share the remaining one-third.
- If there is a will, the spouse is entitled to half of the estate if there are no children or one-third if there are children.
These rights remain intact unless a court order or a formal legal agreement explicitly extinguishes them. For example, even if you haven’t spoken to your spouse in 20 years, they are still considered your legal spouse unless legal action has been taken to end the marriage.
Impact on New Partners and Children
Without formalizing a divorce or legal separation, your estranged spouse’s legal rights can have a significant impact on those you wish to provide for, such as a new partner or your children. For instance, imagine you own a valuable home where your new partner resides. If your estranged spouse claims their legal right share, it could force the sale of the home to divide the value, leaving your partner financially and emotionally vulnerable.
Why People Delay Formalizing Separation
Many people hesitate to take action because they fear upsetting the status quo. For example, a spouse who has been allowed to live in a valuable home for years may worry that initiating legal proceedings will trigger the sale of the property, disrupting their life. Others avoid the process due to the emotional difficulty or financial cost involved. However, delaying action often leads to greater complications and uncertainties for loved ones in the future.
The Importance of Acting Now to Protect Inheritance
Only about 30% of Irish people have made a will, which further complicates these situations. Addressing these issues promptly, by formalizing your separation or divorce, ensures certainty and peace of mind for yourself and your loved ones. No matter how late the process begins, taking control of your legal position is always a worthwhile step.
Take Control of Your Future
Navigating the complexities of inheritance and divorce in Ireland can be challenging. Every case is unique, and the courts consider a range of factors, from the length of the marriage to the financial needs of both spouses.
If you have further questions regarding inheritance and divorce in Ireland, please reach out to your local family law solicitor in Dublin.
Frequently Asked Questions
1. Can my spouse claim my inheritance if we are divorced?
Generally, no. Inheritance is considered separate property unless it is necessary to meet the financial needs of both spouses.
2. Does separation affect inheritance rights?
Informal separation does not affect your spouse’s legal right to inherit. Only a formal legal agreement or court order can extinguish these rights.
3. How can I protect my inheritance during a divorce?
Seek legal advice early and consider initiating proceedings promptly if you anticipate inheriting assets.
Contact Us for Expert Family Law Advice
Protect your inheritance and secure your family’s future. Call us today to arrange a consultation with one of our experienced family law solicitors in Dublin.
