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Legal situation in second relationship and not divorced/legally separated

  • 29-11-2022 9:51am
    Registered Users Posts: 506 ✭✭✭

    Hi All,

    Following another thread, I am curious.

    A couple ("X" & "Y") have been together for a while and "X" is not legally separated or divorced.

    Scenario a, "X" dies and do not leave a will.

    In this case the law of the land applies, and "Y" gets nothing?

    Scenario b, "X" dies and wills everything to "Y".

    What is the legal entitlement of the previous spouse and children?


  • Registered Users Posts: 25,439 ✭✭✭✭Peregrinus

    Scenario A: Y is not related to X and, on X's death, inherits nothing from X.

    Scenario B: X's spouse (let's call them Z) has a legal right to a share in X's estate. As X also has children, Z's right is to a one-third share of the estate. (If there were no children, it would be a one-half share.) X cannot defeat this legal right by the terms of their will, so Z is entitled to their share regardless of what the will says; whatever is left, after Z takes their share, will go to Y under the terms of the will. Z might chose not to assert their right, and simply accept what is left to them in the will (in this case, nothing) but that's Z's choice to make, and in the absence of further facts not given in the OP it seems unlikely that Z would make that choice.

    The children have no fixed right to any particular share of X's estate, but they can challenge the will on the grounds that X has failed in their moral duty to make proper provision for the children. Whether that challenge would succeed depends on the facts of the case - e.g. if the children are still young and have to be maintained and educated for many years before they become self-supporting adults I think a challenge is highly likely to succeed, but if the children are in their fifties, established in careers and professions for which they were educated and trained by X during his life, perhaps less so.

    Things would be more complicated if X and Z, or X and Y, own any property jointly, or if Y or Z contributed, directly or indirectly, to the acquisition of property by X which now forms part of X's estate. But you wisely kept your query simple.