Rights of a spouse on the death of other spouse

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Rights of a spouse on the death of other spouse

On a death the surviving spouse has succession rights - a legal entitlement to obtain some property from the estate of the deceased spouse. The rights are determined by whether there are any children. Part IX of The Succession Act 1965 is the relevant legislation.


Where there is a will

  • If there is a will and no children - ½ of the net estate
  • If there is a will and children - 1/3 of the net estate
  • If the spouse has been given a benefit in the will then the spouse has to elect either to take the legal entitlement or the benefit set out in the will.
  • Strict time periods apply and if the election is not made within the time period the spouse will take what is given under the will and not the statutory legal entitlement (known as the Legal Right Share).
  • The Legal Right Share can be renounced or may cease in certain circumstances for example as part of a separation, on divorce or under unworthiness to succeed provisions.

Where there is no will

  • If there is no will and no children – 100% of the net estate
  • If there is no will and children - 2/3 of the net estate the remaining 1/3 of the net estate goes to the children.


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The material in this article is for general information purposes only and does not constitute legal or taxation advice. Specific legal and taxation advice should be sought before acting. All information and taxation rules are subject to change without notice.

No liability whatsoever is accepted by M. McLoughlin & Co. for any action taken in reliance on the information in this article

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