Ask a solicitor: What happens when your spouse leaves you out of the will?

When one spouse dies leaving a will, and the surviving spouse has not renounced his/her rights, then that surviving spouse has a right known as a ‘Legal Right Share’ to a share of a portion of deceased spouse’s estate, writes solicitor Karen Walsh.

Dear Karen,

My husband died recently and made a will shortly before he died, and he left me €1,000. We were still married and lived together in the same house, but we lived very separate lives. All the assets were in his name, including the farmland and the family home. He farmed, and I looked after the children and home.

Even though we did not have the best relationship in the world, I am shocked that that was all he left me. I feel the small inheritance was his way of sending me a message. I am really worried. He left everything to our three children and appointed my eldest as executor. What are my rights? What can I do?

Dear Reader,

When one spouse dies leaving a will, and the surviving spouse has not renounced his/her rights, then that surviving spouse has a right known as a “Legal Right Share” to a share of a portion of deceased spouse’s estate by virtue of the provisions of Section 111 of the Succession Act 1965.

If there are children, the surviving spouse is entitled to one-third of the estate. If the deceased has made a will that gave the surviving spouse a benefit less than that, the surviving spouse is entitled to claim their legal right to the said share instead of the gift in the will.

To make this claim, in the first instance, a surviving spouse does not have to go to court. The executor is obliged to grant the share on application being made to the executor by the spouse. This is what is called a “Right of Election”.

There are time limits within which the right of election by a spouse must be exercised. It is the duty of the executor to notify the spouse in writing of the right of election conferred by the section. The right cannot be exercisable after the expiration of six months from the receipt by the spouse of such notification, or one year from the first taking out of representation of the deceased’s estate, whichever is the latter.

It is also important to note that time does not begin to run against the surviving spouse until the notice referred to has been served by the executor. From the point of view of the executor, it is vital the notice is served as soon as possible.

It should be noted that there is no obligation on the executor to notify a surviving spouse of the right to a legal right share. The act only obliges the executor to notify the spouse of the right of election.

In addition, the act confirms the surviving spouse may require that the family home be given to him/her instead of the legal right share. If the family home is valued at more than the legal right share, then as a general rule, the spouse will have to pay such difference into the deceased’s estate.

This right of appropriation must be exercised by the spouse no later than six months from the receipt by the surviving spouse of the notification of his/her rights by the executor, or one year from the first taking out of the grant of probate to the deceased’s estate.

Ask a solicitor: What happens when your spouse leaves you out of the will?

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