Does my husband's will mean I'll lose my home?

My husband left everything between our three children in equal shares. I feel very vulnerable; I do not own the house that I even live in! What can I do?

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Dear Karen,

My husband passed away a few months ago. He was very ill for some time and I cared for him.

In the last 20 years or so, we lived quite separate lives in that our relationship was not romantic but we were still together.

There was no animosity but we were more friends than husband and wife. I guess we both felt given our age it wasn’t worth the hassle of formally separating or divorcing.

I recently learned that he has left me a measly €1,000 in his will. I do not own the family home where I have lived since the day we married.

He also had farmland that has been rented to a tenant for the past 10 years and a substantial amount saved in a bank account.

He left everything else between our three children in equal shares. I feel very vulnerable; in particular, that I do not own the house that I even live in! What are my rights? What can I do?

Dear Reader,

I am sorry to hear this. This must be very upsetting for you. I might start by explaining the law in relation to Spouses Inheritance Rights.

If a deceased spouse leaves a will and the surviving spouse does not renounce or give up their rights to the deceased spouse’s estate, then they are entitled to what is known as a “Legal Right Share” in the deceased spouse’s estate.

The surviving spouse is entitled to a one half share of a deceased spouse’s estate if there are no children.

If there are children, a spouse is entitled to a one third share of the deceased spouse’s estate. Therefore, you are entitled at a minimum to a one third share of the estate.

A spouse has very definitive and automatic rights in a situation where a Will has been left.

The Succession Act 1965 provides that regardless of what is stated in a will, a spouse is entitled to a specific share in the estate. The reason for the Legal Right Share is to prevent a spouse from disinheriting another spouse.

In a situation such as the one you find yourself in where a spouse has been given a very small inheritance or a ‘token’ inheritance, the surviving spouse has a right of election.

A right of election means that the spouse can choose between taking the Legal Right Share that he or she is entitled to and the bequest left in the will or, if the Legal Right Share exceeds the bequest, the right to take the gift as partial satisfaction of the Legal Right Share.

You cannot pick and choose what you would like to take in your late husband’s estate, but there is one exception to this rule in that you do have the right to specifically require that the dwelling in which you reside is given to you in satisfaction of your Legal Right Share.

If there is a difference in the value, you will be required to pay the difference. However, there are times when this rule is relaxed.

The fact that you were not in a relationship in a romantic sense is irrelevant and does not affect your inheritance rights. In the eyes of the law, you were still together as a couple, were still spouses as at his date of death and your rights under the Succession Act 1965 are not affected at all.

You have not mentioned who is the legal personal representative or executor of your late husband’s will. However, I presume it is not you.

The legal personal representative or executor has a statutory duty to notify you of your right of election and also to notify you of the right of appropriation of the dwelling house and the household chattels.

You must ask for your Legal Right Share within six months of being notified or within 12 months of taking out of the Grant of Representation to your late husband’s estate. You do not have to go to court to get this share.

You should consult with a solicitor at this juncture to make sure that all your rights are protected.

They can liaise with the solicitor for the estate and take detailed instructions from you to see if you can make a claim for further entitlement from your late husband’s estate, if applicable, depending on the circumstances of your situation.

Karen Walsh, from a farming background, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork, and also the author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email: info@walshandpartners.ie

Web: www.walshandpartners.ie

While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.

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