Spousal rights: We're not together but never divorced

I have now learned that he recently passed away and he left a Will appointing this woman as the executrix to his estate and giving his entire estate to her.

I am not even sure if he told his new partner that he was, in fact, still married. He did not have much when he died save for the house that I live in which had been the family home and some small monies in a bank account, I think.

I am afraid now she is going to take the entire house and I will be left homeless. I have reared my child and worked hard all my life to support my child and now I am afraid in my later years that I will be left homeless. What would you advise? What are my rights?

Dear Reader,

I am sorry to hear this. This is most distressing and unfortunate. As spouse of the deceased, you are beneficially entitled to a one-third share of your late husband’s estate by virtue of the provisions of Section 111 of the Succession Act 1965. Under the Succession Act 1965, a spouse has a right to a particular share of their spouse’s estate.

This is called the “Legal Right Share” and is one half of the estate if there are no children or one-third of the estate if there are children.

Even where spouses are no longer living together and are no longer in an intimate and committed relationship for some time, they are still married in the eyes of the law and are spouses and therefore, their rights under the Succession Act are not affected.

You may also be entitled to more than that in the estate if you contributed towards the purchase of the family home. You are also entitled to be the executrix of the estate as you are still married to him as at his date of death. You need immediate legal advice.

You can also lodge what is known as a caveat in the Probate Office where you would be notified of any application to extract a Grant to your late husband’s estate, and you can object to same. 

You can issue legal proceedings against the estate seeking for the executrix to be removed in the estate of your late husband and/or an Order directing the defendant to administer the estate of the deceased and to give you your legal right share in accordance with law.

In general, the spouse cannot pick and choose what he or she wishes to take in an estate. There is an exception where the spouse has the right to specifically require that the dwelling in which she resides is given to the spouse in satisfaction of her legal right share.

Usually, the surviving spouse will have to pay the difference in value if there is one. However, there are circumstances where this rule is relaxed in reality.

In addition, as you late husband did not leave anything to your child in his Will, your daughter may also have a basis to bring a claim against the estate also. Section 117 of the Succession Act 1965, provides that a child of a deceased parent who made a Will can apply to court for a declaration that the parent failed in their moral duty to make proper provision for the child in accordance with their means. Section 117 does not create an obligation to leave something to each child and it would be best that your child seek independent legal advice also.

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.