A Guide to Succession Law and Intestacy in Ireland

In this feature, barrister and author Christopher Lehane calls upon his vast experience of succession law to provide a guide to inheritance in the event of an individual’s dying intestate, outlining the rights of the deceased’s descendants and relatives and the laws that dictate their share in the estate.

When a person dies testate – that is, leaving a will – his assets are distributed in accordance with his instructions in the will. Where a person dies intestate – that is, without leaving a will – the distribution of his assets is governed by law. In Ireland, the rules of distribution on intestacy set out in Part VI (Sections 67- 73) of Succession Act 1965 govern intestate succession law for the estate of a deceased person dying intestate after 1/1/67.

The Act for the first time assimilated the laws governing the devolution^[1] and distribution of an intestate’s personal and real estate, greatly simplifying the law. It also significantly modified the entitlements of persons inheriting on intestacy, which had remained unchanged on the statute book since the Statute of Distributions (Ireland) Act 1695 first codified intestate law in Ireland. Whilst intestate succession law is now much simpler, knowledge of the law prior to the commencement of the Act is still required when dealing with deaths intestate prior to 1/1/67.

The entitlement to succeed on intestacy to the estate of a deceased person, no matter when he died, requires the person to be the closest blood relative to the deceased alive at his date of death,^[2] as kinship is based on blood relationship. The two cardinal rules of intestacy law (and indeed probate law) are: (1) interest is determined at date of death of deceased^[3] and (2) grant^[4] follows the interest. The interest of any person to inherit is determined at the date of death of the deceased. When we say that ‘next-of-kin’ inherit on intestacy, we mean that the nearest circle of kin, alive at the date of death of the deceased, inherit all of his estate on death, to the exclusion of all remoter circles of kin. The kin inheriting have the entitlement to extract the grant.

The priority of entitlement^[5] to inherit on a death intestate after 1/1/67 is as follows:

As experienced UK probate practitioners will appreciate that the Irish rules for distribution on intestacy for deaths intestate after 1/1/67 are similar to those of England and Wales, save for four significant differences:

• Spouse/CP entitled to whole estate on death of spouse/CP without issue alive at his date of death, irrespective of value or type of estate.
• Where spouse/CP dies with issue, shares are always 2/3:1/3 respectively, irrespective of value or type of estate.
• Relatives of half-blood^[7] have equal entitlement with relatives of whole blood.
• Where collaterals (relatives not direct lineal ancestors nor direct lineal descendants e.g. nephews, nieces, first cousins) have equal degrees of relationship at death to deceased with a direct lineal ancestor; collaterals are preferred to that direct lineal ancestor.

Per Stirpes Rule

The 'per stirpes’ rule (‘by the roots’) is an exception to the general intestate rule that, to inherit on intestacy, one must be in the nearest circle of kin alive at the date of death to the deceased – interest is determined at the date of deceased. The rule allows kin inherit the share of their parent that would otherwise have lapsed where their parent predeceased the deceased, whilst others of his circle survived the deceased and inherit as next of kin. It applies in two situations (circles of kin) where:

1. Issue of a deceased person are inheriting
2. Brothers and sisters of a deceased person are inheriting

In the first case, two conditions must be fulfilled for the per stirpes rule to apply:

• One child survives the deceased.
• One child predeceases the deceased, leaving issue alive at date of death of deceased.

If no child survives the deceased, then all the grandchildren share the estate equally. If the predeceased child does not leave issue alive at the deceased’s death, then the surviving children share estate equally.

The entitlement to succeed on intestacy to the estate of a deceased person, no matter when he died, requires the person to be the closest blood relative to the deceased alive at his date of death, as kinship is based on blood relationship.

In the second case, the rule applies similarly in the brother/sister circle, requiring one sibling to survive and one sibling to predecease the deceased, leaving children alive at date of death of deceased. How the rule applies differently in this circle of kin to the issue circle of kin is that, unlike in the issue circle – which applies through all circles of issue, allowing a child’s share be saved for benefit of all of his issue if any are alive at date of death of the deceased – it is restricted in the brother/sister circle to children only of the sibling.

In the brother/sister circle therefore, if the predeceased sibling had no child alive (be a nephew/niece of deceased), that share lapses and is shared amongst surviving brothers and sisters and any nephews and nieces of the children of another sibling of the deceased who predeceased the deceased. Grandnephews or grandnieces do not inherit per stirpes.

Non-Marital Relationships

The status of illegitimacy was abolished in Ireland by the Status of Children Act 1988. The Act applies in relation to intestate succession where a deceased died intestate after 14/6/88. Section 3 of the Act provides that: “in deducing any relationship for the purposes of the Act or any Act of the Oireachtas passed after the commencement of this section, the relationship between the person and his father and mother (or either of them) shall, unless the contrary intention appears, be determined irrespective of whether his father and mother have been married to each other and all other relationships^[8] shall be determined accordingly.”

The Act applies to a will where the will was made after 14/6/88, so any references to ‘child’ or ‘issue’ will be interpreted in such wills as including non-marital children/issue. Testators are entitled to exclude the provisions of the Act and where a will made after 14/6/88 expressly excludes Act application, all references to child/issue in the will shall only include marital children and issue.

Adoption

An adopted child is deemed from date of adoption order in Ireland, or the recognition of an intercountry adoption effected outside the State, to be the child of the adopters and not the child of any other person^[9]. The adoption order or the recognition of an intercountry adoption effected outside the State terminates the legal relationship between the child and his natural parents and all rights (including succession rights) and obligations between the parties cease from the date of the respective order.

[ymal]

Civil Partnership

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (2010 Act) established a statutory scheme for the registration of same-sex relationships and set out the rights and obligations of civil partners registered under the Act, substantially mirroring those of spouses. Part 8 of the 2010 Act sets out the entitlements of a surviving civil partner on the death of his partner. It equalises almost identically the succession rights of civil partners with that of spouses^[10]. Practically all references to ‘spouses’ in the Succession Act have the words ‘civil partner’^[11] inserted thereafter, conferring the same rights under the section to civil partners as conferred therein on spouses.

Children of a deceased civil partner are conferred with a right akin to a Section 117 of Succession Act application entitlement to seek increased statutory provision on intestacy to their deceased parent’s estate where he can prove that his deceased parent “failed in his moral duty to make adequate and just provision for him in his lifetime or on death.”^[12] No new civil partnerships can be entered into in Ireland since the enactment of the Marriage Equality Act 2015 on 16/11/15, unlike in the UK where civil partnerships are available for both same-sex and opposite-sex married couples.

Same-Sex Marriage

Under the Marriage Equality Act 2015 (effective as of 16/11/15) same-sex couples legally can get married in Ireland. They have the same rights and obligations towards each other as opposite-sex married couples.

Cohabitants

A qualified cohabitant, whilst not having any succession rights against the estate of his cohabitant partner, has the right under Section 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to apply to Court for it to make “proper provision” for him out of the estate of his deceased cohabitant, based on dependency factors set out in the section.

Conflicts of Laws

Ireland, like the UK, refused to opt into the EU Succession Regulation, which came into force in August 2015. Similar to the UK, our conflict rules provide that intestate succession to moveables is determined by the law of domicile at death and intestate succession to immovables by the law of the place where they are situated.

Notwithstanding that neither Ireland nor UK participated in the EU Succession Regulation, Articles 21 and 22 thereof very usefully still allow nationals of both countries with assets within participating EU countries, by will or other formal legal document choose the laws of their nationality at death or on making of will to govern their succession ‘as a whole’, i.e. all matters of testate and intestate succession regarding their moveable and immovable assets. This is particularly beneficial for Irish and UK testators in avoiding forced heirship rules of civil law jurisdictions.

Christopher Lehane, Barrister

Law Library, Four Courts, Dublin 7, D07 N972, Ireland

Tel: +353 87 650 2656

E: christopher.lehane@lawlibrary.ie

Christopher Lehane is a practising barrister specialising in mainly succession law, personal insolvency law and mediation in Ireland. He also is a qualified mediator (Ciarb), pension trustee (QPT IIPM) and project manager (IPMI). He was called to the Bar in 1983 and commenced practice in 2020 on retirement from the High Court of Ireland, where he had served for 42 years. He was consultant on probate law to the Law Society of Ireland for 15 years and has recently written a substantial book on succession law in Ireland (‘Succession Law’, Bloomsbury Professional ISBN 9781526522245) that provides a peerless analysis of succession law, with extensive coverage of related issues such as tax, conveyancing, family law, enduring powers of attorney, limitation of actions, estate accounts, private international law and trusts.

[1] The law governing devolution of a deceased’s property determines in whom the property vests on death of deceased, whereas the law of distribution determines how and to whom it is distributed. Devolution means the passing of property from a person dying to a living person and in this context passing from a deceased to his legal personal representative. Once the estate property vests in the legal personal representative under section 10 of the Succession Act 1965, he is then obliged to distribute it in accordance the will or on intestacy of the deceased to his next of kin.

[2] A spouse / civil partner is not ‘kin’ as he/she is not a blood relative and his/her succession rights derive on foot of the marriage / civil partnership.

[3] A child in the womb at date of death of the deceased is deemed in law as having been born in his lifetime and survived the deceased once, he actually survives the deceased. Section 3(2) of Succession Act 1965 states, “descendants and relatives of a deceased person begotten before his death but born alive thereafter shall, for the purposes of this Act, be regarded as having been born in the lifetime of the deceased and as having survived him.”

[4] Grant of Administration – In all cases where a person dies solely owning immovable assets and in many instances where he owns moveables (e.g. where account amounts exceed generally €10,000 and financial institutions require one to release funds), it is necessary to extract a Grant of Administration from the Probate Office in Dublin or a local probate registry.

[5] All reference to males in table is equally applicable to females.

[6] Note that 'Issue represents a man ad infinitum' i.e. as long as a man leaves a child/grandchild etc. and his spouse alive at his date of death, that child/grandchild etc will inherit (the 1/3 interest, with the spouse inheriting the other 2/3).

[7] ‘Half-blood’ means the relative shares a common parent with the deceased, unlike a step relative who shares no common parent, therefore no common blood and hence no succession rights which are based on blood relationship.

[8] Meaning that the child’s succession rights to all kin remoter than his parents and their succession rights to the child are determined irrespective of whether the child’s parents were married to each other at the birth of the child.

[9] Section 60 subsections (1), (2) and (5) of the Adoption Act 2010 which Act consolidated adoption law in this area.

[10] Section 73 of the 2010 Act inserts a new Section 67A into the Succession Act, conferring succession rights on intestacy to a surviving civil partner.