‘Til death do us part’: surviving spouses, civil partners and provision on intestacy in Ireland

Abstract

The Succession Act 1965 brought, it was said, a ‘revolutionary change’ in the law of succession to Ireland (Re Urquhart [1974] IR 197 at 208). However, despite the enormous impact it has had on citizens, in the 50 years since its enactment, the Act has never been subject to a comprehensive review or reform. This lack of legislative engagement in Ireland stands in marked contrast to a number of other common law jurisdictions. In the past decade alone, the Law Commission for England and Wales, the Scottish Law Commission, the New South Wales Law Reform Commission and the British Columbia Law Institute have each placed their respective succession law regimes under the microscope. Responding to this gap in the literature, this article considers the extent to which surviving spouses or civil partners are adequately protected on intestacy, specifically, in Ireland. Highlighting the potentially serious shortcomings of the Irish fractional share approach, and drawing on the experience of a number of common law jurisdictions, the article presents a proposal for reform. In this regard, it places a particular focus on the need to strike an appropriate balance between the competing interests of spouses/civil partners and children in the distribution of an intestate estate.

Keywords:

• Succession law
• intestacy
• statutory legacy
• mixed families

Acknowledgements

The author would like to thank Dr Una Woods, School of Law, University of Limerick and the anonymous reviewers for their feedback in relation to this article.

Notes

1. This article does not consider the position of cohabitants. Although a ‘qualified cohabitant’ may apply for provision to be made for them from the estate of a deceased cohabitant under section 194 of the 2010 Act, cohabitants generally do not enjoy the right to share in the intestate estate of a deceased cohabitant in Ireland. Consequently, notwithstanding that surviving cohabitants may be equally vulnerable on intestacy, the issues arising in such circumstances are outside the scope of this article.

2. Note, in May 2015 the Thirty Fourth Amendment to the Irish Constitution (Bunreacht na hÉireann) (the Marriage Equality Referendum) was passed, amending Article 41 and allowing for the introduction of the Marriage Act 2015 facilitating same-sex marriage in the jurisdiction. The definition of ‘spouse’ for the purpose of the Succession Act 1965 will thus include a same-sex spouse. Moreover, following the commencement of the Marriage Act 2015, civil partnerships have been prospectively discontinued. Couples currently registered as civil partners may retain their relationship status, however.

3. The decision to initiate succession law reform in Ireland in the early 1960s, so soon after the introduction of the 1954 Act, was heavily influenced, from a political perspective, by the personal interest taken in the area by the then Minister for Justice, Charles J. Haughey.

4. Under section 111, where a testator leaves a spouse and no children, the surviving spouse has a right to one-half of the entire estate; where the testator leaves a spouse and children, the spouse is entitled to one-third of the estate.

5. If all the children are in equal degree of relationship to the deceased the distribution will be in equal shares among them; if they are not, it will be per stirpes, see section 67(4).

6. Section 111A as inserted by section 81 of the 2010 Act. However, unlike surviving spouses, this share is not guaranteed and may be affected by any provision made for a child under section 117(3A) as inserted by section 86 of the 2010 Act.

7. Section 67A(4) ensures provision made under this section shall not affect the entitlement of any other issue and the amount provided shall not be greater than the amount to which the applicant would have been entitled had the intestate died leaving neither spouse nor civil partner. No such discretionary provision is available to children of a marital relationship.

8. See section 14 of the Family Home Protection Act 1965 and section 38 of the 2010 Act.

9. Section 56(1) provides: ‘Where the estate of a deceased person includes a dwelling in which, at the time of the deceased's death, the surviving spouse was ordinarily resident, the surviving spouse may, … require the personal representatives in writing to appropriate the dwelling … in or towards satisfaction of any share of the surviving spouse.’ The term ‘dwelling’ is defined in section 56(14) as ‘an estate or interest in a building occupied as a separate dwelling or a part so occupied, of any building and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling’. In Hamilton v Armstrong [1984] ILRM 306, a five-acre field was appropriated with a family home. Despite not being used for ‘amenity and convenience’ nor constituting part of the ‘garden’, as the field held a septic tank and piped water for the house, it was considered ‘attached’ to the land.

10. See section 31 of the Land and Conveyancing Law Reform Act 2009.

11. Although a surviving civil partner would have been less likely to be a trustee for the share of an infant in light of the restrictions on joint adoption which applied in the jurisdiction, the newly enacted Children and Family Relationships Act 2015 will, once commenced, permit joint adoption by civil partners, see below.

12. Nor can a civil partner use section 67A(3) to increase his or her share.

13. Dáil Deb 15 December 1964, vol. 213, col. 1066.

14. It also showed that almost 20% of respondents over the age of 65 had not made a will.

15. Although DIY wills are possible there is arguably a higher probability that such wills may be found to be invalid.

16. It is worthwhile to note that the vulnerability of a surviving spouse or civil partner may be even more acute where the deceased drafts a will and chooses to disinherit them. In such circumstances, a surviving spouse is limited to merely receiving his or her legal right share outlined above at note 4. For proposals to remedy this potential weakness, particularly for small or modest estates, see O’Sullivan (2012).

17. Given the relatively recent recognition of civil partnership in many jurisdictions, it is hard to say that there has been an ‘intensification’ over time in the intestacy entitlements of civil partners. However, civil partners are increasingly viewed as equivalent to spouses (notably in jurisdictions where same-sex marriage is not permitted) and therefore the trend towards the intensification of the rights of surviving spouses is dealt with in conjunction with civil partners.

18. This was most recently achieved in England and Wales, pursuant to section 1 of the Inheritance and Trustees' Powers Act 2014.

19. One of the key influencing factors in determining the level at which statutory legacies are set in a number of jurisdictions is the average house price in that jurisdiction, see below.

20. Spouses or civil partners are also entitled to one-half share of the remainder and may seek to increase their overall entitlement at the discretion of the court pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 discussed below.

21. Albeit depending on its composition. The prior right to the dwelling is £473,000, the prior right to furniture is £29,000 and the prior right to the monetary estate is £50,000 where there are issue or £89,000 where there are no issue. These figures were last set by the Prior Rights of Surviving Spouse and Civil Partner (Scotland) Order 2011 (SI 2011/436) and were effective from 1 February 2012. They are also entitled to one-third of the remaining intestate estate after the prior rights have been satisfied. See section 8 of the Succession (Scotland) Act 1964 as amended by the Civil Partnership Act 2004.

22. See section 21. Surviving spouses also take a half share in the remainder. See below for discussion of the rules applicable where the deceased is survived by children from a former relationship. Note also, section 20 provides that where the intestate dies leaving no surviving descendent, the surviving spouse, including same-sex spouse, will take the entire estate.

23. ‘Domestic partner’ includes de facto same-sex spouses.

24. Spouses or domestic partners would also be entitled to a half share in the remainder.

25. Notwithstanding the considerable legislative and public support it enjoyed, on referral to the Supreme Court, the Bill was found to be unconstitutional. See Re Article 26 of the Constitution & in the matter of the Matrimonial Home Bill, 1993 [1994] 1 ILRM 241.

26. This section was presumably introduced to better allow children to share in the estate of a legal parent where they were less likely to share in the devolution of the surviving civil partner’s estate with whom they enjoyed no legal relationship due to the restrictions which, until recently, applied to joint adoption by civil partners. As this limitation is soon to be removed on the commencement of the Children and Family Relationships Act 2015, discussed below, there appears no justification for the retention of the section.

It is worthwhile to note, moreover, that a similar situation does arise (and will continue to arise) on remarriage between a deceased’s children from a former relationship and their stepparent. Yet, in these circumstances, there is no equivalent to section 67A(3). While it may seem harsh to limit children to a share in one-third of the intestate estate, such provision broadly reflects the findings of American research (Fellows et al., 1978) which indicated: ‘A statute that provides a second or subsequent spouse with 60 to 70 per cent of the deceased’s estate with the residue being shared equally by the decedent’s children or their issue would mirror most intestate decedent’s preferences and best accommodate societal needs’ (p. 367).

27. As amended by section 71 of the Civil Partnership Act 2004.

28. See sections 1(2)(a) and 1(2)(aa).

29. See section 2.

30. Such as the Northern Territory, Queensland, Victoria and Western Australia.

31. Moreover, such an approach would arguably be liable to unduly impact on the rights of children where the home is very valuable and the surviving spouse takes the full value, leaving nothing for the children in which to share.

32. Dáil Deb 2 December 1964, vol. 213, col. 332 (emphasis added). However, a fractional share, irrespective of its size, does not always provide a sufficient monetary sum for a surviving spouse. Moreover, the perceived inconvenience of updating the monetary sum ought not to be sufficient reason to reject such an approach as the difficulties which might be liable to arise could be minimised through the introduction of a detailed statutory review procedure, see below.

33. This figure is based on calculations which suggest that the average selling price of houses in Ireland in May 2014 was €182,911.This figure was obtained by applying the national Residential Property Price Index (RPPI) for May 2014 which was 71.7, to the Permanent TSB/ESRI House Price Index for January 2005 which showed an average house price of €255,107. These dates were chosen as the RPPI is designed to measure the change in the average level of prices paid for residential properties sold in Ireland since 2005. For the RPPI see, CSO (2014). For the ‘Permanent TSB/ESRI House Price Index’, see https://www.permanenttsb.ie/aboutus/housepriceindex/. Unfortunately, this House Price Index, which was based on the agreed sale price and calculated using data from mortgage drawdowns, ceased production in May 2011.

34. The most common difficulty that is liable to arise in the absence of a specified statutory review procedure is that the statutory legacy, by virtue of its fixed nature, may lose its value over time due to inflation in the wider economy. Where no review is scheduled, the statutory legacy may not be updated to take account of inflation rates for often considerable lengths of time. See above, for example, text to note 21.

35. Whether held in a joint tenancy or tenancy-in-common. Kerridge’s proposal differs from the proposal advanced here in two ways. First, Kerridge’s proposals do not seek to reduce the statutory legacy by any share held under a tenancy-in-common as is suggested here. Second, Kerridge’s proposal sought to reduce the statutory legacy by the value of the right of survivorship only, not the full interest held by the surviving spouse. It is submitted the wider application of offset in this proposal is justifiable on the grounds that this is an alternative to the current provision under the Succession Act and allows the parallel new regime to be directed at those most requiring protection. As the current regime would continue to apply, the share of the estate that owning or co-owing surviving spouses or civil partners would receive would not be diminished. The new alternative scheme would, however, better assist those co-owing spouses or civil partners most in need. It is, moreover, possible that the proposal could be extended to allow surviving sole-owners to claim the statutory legacy offset by the value of the home, where to do so would be more beneficial than the current fractional scheme. This, again, would only benefit those in the most modest estates.

Note also, the home is specifically chosen for offset in this proposal as it is usually the single most important asset held by spouses. In the interests of simplicity, it is not suggested that provision on intestacy should be offset by other assets which pass to the surviving spouse by the right of survivorship. However, an alternative rendering of this proposal could be the introduction of a system of offset for all assets passing to a surviving spouse over a certain value limit.

36. Although this may appear to go beyond meeting the primary objective of the proposal, specifically the protection of a surviving spouse in the family home, it is argued such provision is necessary. Where a surviving spouse acquires or holds a family home of average or greater than average value, they have the option of selling the family home and relocating to a new, lower-value house should the family finances require that the liquidity of the property be accessed. Where the home is worth less than the average value, such liquidity may be considerably reduced. In these circumstances, the family may be placed unnecessarily in serious hardship where additional resources exist outside the family home up to the value of the preferential share.

37. For practical examples of how this would work in practice, see Scottish Law Commission (2009), para. 2.23.

38. It also operates to counteract the imbalance created by section 56(10) whereby non-owning spouses are incapable of receiving further provision from the intestate’s estate. The need to avoid property-specific entitlements has received considerable attention in Scotland; see Scottish Law Commission (2009).

Note, in the case of partial intestacy, gifts or bequests made to a surviving spouse or civil partner under a will ought to be treated in the same manner as the benefit arising by virtue of the right of survivorship and set-off ought to apply.

39. However, this entitlement to two-thirds is not guaranteed in the case of a civil partner, see above.

40. In the case of sole ownership or where there is no family home.

41. Although, following the current approach, any reform ought to be premised on allowing the ‘issue’ of the deceased to participate in the devolution of the estate where the deceased’s children have already died, the discussion here focuses on the entitlement of ‘children’ of the deceased.

42. For the reasons explained below, spouses and civil partners are considered separately.

43. The different balance which needs to be struck in such circumstances is recognised in section 117(3) of the Succession Act 1965, which notes that an order under section 117 ‘shall not affect the legal right of a surviving spouse or, if the surviving spouse is the mother or father of the child, any devise or bequest to the spouse or any share to which the spouse is entitled on intestacy’. Thus, the entitlement of a stepparent is much more open to attack. Under the current intestacy regime, no specific difference is recognised between nuclear and mixed families but this is in the context of a regime which ensures sharing with the children in all cases. However, the inclusion of section 67A(3), discussed above, does seem to show the recognition of the legislature of the different balance which may need to be struck where a child is (or, more correctly in light of introduction of the 2015 Act, was) less likely to inherit from a surviving civil partner. Similar logic would seem to apply to stepparents.

44. Note that whilst section 44 of the Children and Family Relationships Act 2015 amends section 6C of the Guardianship of Infants Act 1964 allowing a stepparent to apply to be appointed a guardian of a stepchild, a stepchild is not a ‘child’ within the meaning of the Succession Act 1965.

45. Note the term ‘spouse’ in British Columbia includes same-sex spouses, see above.

46. A modified version of the Uniform Probate Code has been adopted by 19 states. On intestacy, where all the deceased’s children are common children of the deceased and the surviving spouse, and the surviving spouse does not have any other children, the surviving spouse inherits the entire estate. By contrast, where either the deceased is survived by children from another relationship or the surviving spouse has children of another relationship, the surviving spouse is entitled to a statutory legacy and a one-half share in the remainder of the estate. The other half of the remainder is divided between the deceased’s descendants.

47. The main reasons advanced in both jurisdictions for not making special provision for these situations was a desire for simplicity, doubts over the relevance of the conduit theory in all cases and a belief that parents were best placed to decide whether to leave something to their children. However, it is submitted these arguments are weak. A parent will rarely chose to die intestate so as to exclude children; the conduit theory is not meant to be absolute and merely states it is less likely a stepparent will be a reliable conduit; and simplicity should not be a determining factor when issues of fairness and justice appear to be at play. However, a full discussion of these issues is outside the scope of this paper.

48. See above.

49. All children of the deceased would then share equally in a half share of the remainder in excess of €120,000.

50. Only the surviving legal parent of the child would have been able to claim the full statutory legacy, yet who occupied that legal role may have been a matter of luck.

51. Although undoubtedly the proposal would not solve all the housing difficulties, in particular, of a surviving spouse or civil partner, it would at least afford a spouse or civil partner potentially much more robust financial protection than currently exists.

52. Dáil Deb, 2 December 1964, vol. 213, col. 320.