Legal Right Share in Ireland: What Your Spouse Is Entitled To

When making a will in Ireland, one of the most important things to understand is the legal right share. This is a protective provision under Irish law that ensures your spouse receives a minimum portion of your estate—regardless of what your will says.

Many people are surprised to learn that you cannot simply leave your spouse out of your will. Irish succession law prioritises spousal protection, and the legal right share is a cornerstone of that protection.

In this guide, we'll explain exactly what the legal right share is, how much your spouse is entitled to, and how this affects your will planning.

What Is the Legal Right Share?

The legal right share is a statutory entitlement guaranteed to a surviving spouse (or civil partner) under Section 111 of the Succession Act 1965. It ensures that your spouse receives a fixed proportion of your net estate—the value of your assets after debts, funeral expenses, and legal costs have been paid.

Critically, this right applies even if you try to exclude your spouse from your will. The law recognises the unique position of a spouse and provides them with an automatic claim that takes priority over other beneficiaries (though not over creditors).

The legal right share applies to what's known as your net distributable estate, which includes:

• Property owned solely in your name
• Bank accounts in your sole name
• Investments, shares, and other financial assets
• Personal possessions and valuable items

It does not include:

• Jointly owned property (which passes automatically to the surviving joint owner)
• Life insurance policies with a nominated beneficiary
• Pension death benefits paid directly to a nominee
• Assets held in trust

How Much Is a Spouse Entitled To?

The amount your spouse receives under the legal right share depends on whether you have children. Here's how it works:

If You Have Children

Your spouse is entitled to one-third (1/3) of your net estate.

For example, if your net estate is valued at €300,000, your spouse's legal right share is €100,000. The remaining €200,000 can be distributed according to your will—to your children, other family members, friends, or charities.

If You Do Not Have Children

Your spouse is entitled to one-half (1/2) of your net estate.

Using the same €300,000 estate, your spouse would receive €150,000 as their legal right share. You can distribute the remaining €150,000 as you wish in your will.

Important Notes on "Children"

Under Irish succession law, "children" includes:

• Biological children (whether born inside or outside marriage)
• Legally adopted children
• Children of your deceased children (your grandchildren, known as "issue")

It does not include stepchildren, foster children, or children you cared for in loco parentis (as a parent) unless they were formally adopted.

Can You Disinherit Your Spouse?

The short answer is no—you cannot fully disinherit your spouse in Ireland.

Even if your will explicitly states that your spouse should receive nothing, they can elect to claim their legal right share. This is a fundamental protection built into Irish succession law, and it reflects the principle that spouses have a mutual duty of support that extends beyond death.

How the Election Works

When you die, your spouse has a choice (an "election"):

1. Accept what you left them in your will, or
2. Claim their legal right share instead

They cannot have both (unless your will specifically states that a gift is "in addition to" the legal right share). Your spouse must make this election within:

• 6 months of receiving written notice from the executor, or
• 12 months from the grant of probate

If the amount you left them in your will is equal to or greater than their legal right share, and it's not specified as being "in addition to," the law assumes that gift satisfies the legal right share.

Very Limited Exceptions

There are only a few narrow circumstances where a spouse may be excluded from succession rights entirely:

• Divorce: If you obtained a decree of divorce against your spouse before you died, they lose all succession rights.
• Desertion: If your spouse deserted you for at least two continuous years before your death, they may be precluded.
• Criminal offences: If your spouse was guilty of a serious offence against you, your spouse, or your child.

These are high bars and require specific legal circumstances. For the vast majority of married couples, the legal right share is absolute.

What About Separated or Divorced Couples?

If you and your spouse are no longer living together, the situation depends on your legal status:

Separated (But Not Divorced)

If you are separated but not legally divorced, your spouse still has a legal right share—unless one of the exceptions above applies (such as desertion for two years or more).

Many separated couples enter into judicial separation agreements or deed of separation contracts. These agreements can include provisions where one or both spouses agree to renounce their succession rights. If this has been done properly and the court deems "adequate provision" has been made, the legal right share may not apply.

It's essential to review your will if you separate. Updating your will after a major life change ensures your wishes reflect your current circumstances.

Divorced

Once a decree of divorce is granted, your ex-spouse loses all succession rights to your estate. They are no longer entitled to a legal right share and have no automatic claim under intestacy rules either.

This is one of the most significant legal effects of divorce in Ireland. However, if you wish to make provision for an ex-spouse (perhaps for ongoing support or care of children), you can still name them as a beneficiary in your will—but it will be a voluntary gift, not a legal entitlement.

Do Cohabiting Partners Have a Legal Right Share?

No. Cohabiting partners—no matter how long they have lived together—do not have a legal right share in Ireland.

The legal right share only applies to married couples and civil partners. If you are in a long-term relationship but not married, your partner has no automatic inheritance rights to your estate.

What Rights Do Cohabitants Have?

Under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, a "qualified cohabitant" can apply to court for a share of their deceased partner's estate. To qualify, the couple must have lived together:

• In an intimate and committed relationship for at least 5 years, or
• For at least 2 years if they have a dependent child together

However, this is not automatic. The surviving partner must make a court application within 6 months of probate, and the court will consider factors such as:

• The financial dependency of the survivor
• The length and nature of the relationship
• Contributions made by each partner (financial or otherwise)
• The needs and resources of both parties
• The rights of any other dependents or beneficiaries

Even if successful, there's no guarantee of a specific share. The court has discretion, and outcomes vary widely.

inheritance tax for Cohabitants

Cohabiting partners are also treated as "strangers" for inheritance tax (Capital Acquisitions Tax) purposes, meaning they face a tax bill of 33% on amounts over €16,250. Married couples, by contrast, are entirely exempt from inheritance tax.

This is one of the biggest financial risks for unmarried couples. If you want to protect your partner, you must make a will naming them as a beneficiary. Without a will, the estate passes under intestacy rules—and unmarried partners inherit nothing.

How the Legal Right Share Affects Your Will Planning

Understanding the legal right share is essential when drafting your will. Here's what you need to know:

1. You Cannot Ignore It

Many people draft wills that attempt to bypass or minimise their spouse's entitlement. These provisions are ineffective. Your spouse can simply elect to take their legal right share instead, and the rest of your estate will be distributed accordingly.

2. Plan Your Estate Around It

If you want to make gifts to children, other family members, or charities, you need to factor in the spouse's share first. For example:

• Net estate: €450,000
• Spouse's legal right share (with children): €150,000 (1/3)
• Remaining for distribution: €300,000

You can then allocate that €300,000 as you wish—splitting it among children, making specific gifts, or supporting causes you care about.

3. Consider the Family Home

Under Section 56 of the Succession Act, your spouse can apply to have the family home appropriated (assigned) to them as part of their legal right share. This ensures they can remain in the home without being forced to sell.

If the value of the home exceeds their entitlement, they may need to pay the difference to the estate. If it's less, they receive other assets to make up the balance.

4. Communicate Your Wishes

While you cannot disinherit your spouse, you can have open conversations about your plans. If you want to leave more to your children or make specific charitable bequests, discuss this with your spouse. Many couples agree on estate plans that work for everyone—and these agreements can be reflected in both wills.

5. Review After Major Life Events

Marriage, separation, divorce, the birth of children, and the death of a spouse all change the legal right share calculation. Regularly reviewing and updating your will ensures your estate plan remains aligned with your family situation and wishes.

Making a Will That Respects the Legal Right Share

At MakeAWill.ie, our legally compliant templates guide you through the process of creating a will that works within Irish succession law. You'll be prompted to consider:

• Your spouse's legal right share
• Provision for children and dependents
• Specific gifts and bequests
• Residuary estate distribution
• Executors and guardians

Our platform makes it simple to create a clear, enforceable will—no legal jargon, no expensive solicitor fees, just straightforward guidance tailored to Irish law.

Key Takeaways

• Your spouse has a legal right share under Section 111 of the Succession Act 1965.
• They are entitled to one-third of your estate if you have children, or one-half if you do not.
• You cannot disinherit your spouse unless very specific circumstances apply (divorce, desertion, criminal offences).
• Separated couples may still have rights unless there's a formal agreement or divorce.
• Cohabiting partners have no legal right share and must rely on a will or court application.
• The legal right share must be factored into your estate planning—ignoring it won't make it go away.

Ready to Make Your Will?

Don't leave your loved ones guessing. Create a legally sound will today with MakeAWill.ie. Our templates are designed by legal professionals, easy to use, and fully compliant with Irish succession law.

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Disclaimer: This article is for general information purposes only and does not constitute legal advice. For advice on your specific circumstances, please consult a qualified solicitor.