The legal framework
Irish spouses own property separately, and the courts make orders on divorce with a requirement of proper provision. On death, the Succession Act 1965 gives the surviving spouse a legal right share — one third of the estate where there are children, one half where there are none — regardless of the will. Children may apply for provision where the parent failed in their moral duty.
As a member state of the European Union participating in the enhanced cooperation, the law applicable to the matrimonial property of international couples is determined here by Regulation (EU) 2016/1103.
Key points
| Legal right share | One third with children, one half without; cannot be defeated by will |
|---|---|
| Children | May apply under section 117 where the testator failed in a moral duty |
| Family home | Protected by the Family Home Protection Act: it cannot be sold without the other spouse's written consent |
| Divorce | Proper provision, with no clean-break principle |
| Cohabitants | May apply for provision from the estate under the 2010 Act |
| Capital acquisitions tax | Thresholds by relationship; transfers between spouses are exempt |
| Family home protection | The family home cannot be sold without the other spouse's written consent |
| Section 117 | Children may apply where a parent failed in their moral duty to provide |
In practice
- Both spouses must sign for any sale or mortgage of the family home.
- A spouse can renounce the legal right share in writing, before or during the marriage.
- Make a will — intestacy gives the spouse two thirds where there are children.
- Consider CAT thresholds when planning gifts to children.
- Obtain written spousal consent before any sale or mortgage of the family home.
- Make a will; the legal right share applies in any case but a will avoids disputes.
Cost and coverage
Legal fees for wills and conveyancing; CAT at a flat rate above the relevant threshold.
Recent changes
The absence of a clean break in Irish divorce law means estate planning and divorce settlements interact in ways that require careful drafting.
Where to go
- Citizens Information on succession.
- Law Society of Ireland for solicitor referrals.
- Revenue for capital acquisitions tax thresholds.
Worth knowing
The legal right share is automatic: a will leaving everything to children still gives the surviving spouse a third. Planning has to start from that fact, not ignore it. The legal right share cannot be defeated by a will. A spouse can elect to take it instead of whatever the will provides.
Official sources and links
- Citizens Information — official plain-language guide to rights and entitlements
- Irish Statute Book — legislation as enacted