Divorce; Wills and Inherited Assets

January 17, 2024

If you are navigating a marriage breakdown, there are a number of significant reasons for obtaining a divorce. Most fundamentally, the right to re-marry. Divorce can provide a more definite sense of finality to, and the ability to move on from, a marriage breakdown. Upon divorce, persons cease to be the spouse of each other which is relevant to issues such as inheritance rights and tax issues. A person who remarries cannot continue to claim spousal maintenance from a former spouse. Obtaining a divorce will reduce the likelihood that an estranged spouse might make further financial claims into the future. Two questions which often arise, when first consulted by a person about divorce, relate to any inheritance that they have received or may receive and what now happens to their Will.

Divorce and Inheritance 

When a couple separate, an issue that frequently arises is the issue of inherited assets. Unfortunately like a lot of legal issues, there is no black-and-white answer to this question. The general principle is that one spouse’s inheritance is their own property and is not part of the pool of assets to be divided upon divorce. However, this is not an absolute position. As every family is different, each person’s factual scenario must be treated differently and assessed individually. The legislation does not specifically deal with the issue of how an inheritance should be treated. What the legislation does is allow a Judge to take inherited assets into account, if they believe it to be necessary, in deciding what is proper provision for both spouses following a separation. Proper provision is the test which the Family Law Courts must apply when making decisions in the context of a divorce or judicial separation. As stated in previous articles, the concept of proper provision is a very difficult one considering no two marriages are the same and therefore no two divorces will be the same. The Family Law Courts, in weighing this up, must look at a wide variety of factors such as income/income earning capacity, accommodation needs, reasonable expectations of standards of living into the future, length of the marriage, ages and needs of any children, any mental disabilities, whether a sacrifice to a career should be taken into account and any statutory benefits either are entitled to.

Clearly, the main determining factor for the Court in a divorce is usually the respective needs of the parties. A Judge however has enormous discretion in this regard. A Court must also take account of the judgment of the Supreme Court in the 2012 case of G v G in which the Supreme Court stated that inherited assets should not be necessarily considered to be assets of the marriage. This is all well and good when the parties have multiple other assets that can be divided between them but if the inherited assets are the only assets that the family have, then this decision is a difficult bar to reach.

The date when the assets were inherited is a major factor. If the inheritance was received a long time ago it is more likely to be included in the assets to be divided between the parties. The leading Irish case in this area is the case of C v C. The main asset in this case was a large estate which had been inherited by the husband and which had been in his family for generations. The gross value of the assets were over €30 million and the wife was seeking to have the main house transferred to her. The husband argued that the wife had no claim to the property. He argued that he was the sole owner, he had family connections with it for a very long time and he argued that his wife did not contribute either directly or indirectly to its purchase as the house was inherited. Mr Justice O’Higgins refused to transfer the house to the wife. C v C is clearly not your run of the mill case. Very few Irish families have such a large amount of assets available for division. In C v C, the husband and wife had other significant assets and income and even excluding the inherited property, both parties could be properly provided for into the future with the remainder of their joint assets excluding the inherited property.

Contrast the situation in C v C with a 25-year marriage where one spouse inherited a family farm 30 years before the marriage fell apart and the farm was the only source of income for the family. On separation, both parties will need to be provided for from this farm. Similarly contrast the 25-year marriage and the family farm with a one-year marriage where one spouse inherited a large sum of money during the marriage. The Court is unlikely to give a spouse a significant proportion of this sum considering the short term of the marriage and the recent nature of the inheritance. Clearly there is no one-size-fits-all answer to a divorce.

The key to remember is that in every divorce case, a Judge must divide all available assets in order to make proper provisions for both spouses going into the future.  The goal of the Family Law Courts, taking into account the above decisions of G v G and C v C, is that proper provision can be provided without interfering with inherited property. However, Judges have a constitutional obligation to ensure that both parties are properly provided for into the future and this obligation will take preference over inherited property.

Divorce and your Will

If you have made a Will, your spouse has very definite and automatic rights irrespective of what your Will states. The Succession Act provides that your spouse is entitled to a specific share in your estate. This is known as the ‘Legal Right Share’.  This means that your spouse can choose to take this share of your estate instead of any gift you have left them in the Will.

The purpose of this Legal Right Share is to prevent the deceased from disinheriting the surviving spouse. The size of the ‘Legal Right Share’ depends on whether the deceased had children.  Where there are children, the Legal Right Share of the spouse is one third of the estate.  Where there are no children, the Legal Right Share is one half of the estate.

Separation does not necessarily put an end to a spouse’s right to inherit. After separation, the parties remain, for legal purposes, spouses. When spouses are living apart informally, they continue to be spouses in the eyes of the law and therefore their rights under the Succession Act are not affected, except in some exceptional circumstances as are provided in Section 120 of the Succession Act 1965. This means that if you are informally separated, your former spouse could continue to be entitled to their Legal Right Share of your estate.  It is not enough to revoke the Will. If you do not want your former spouse to inherit your estate, then you need to put a formal legal agreement in place, in which you both renounce your succession rights. If you and your spouse have a formal written separation agreement or are formally judicially separated, it is likely that you may have given up your succession rights. If you are divorced, you are not normally entitled to any inheritance from your ex-spouse when they die, unless they have left something to you in a valid Will. If you are divorced, it is absolutely essential that you change your Will to reflect the fact of your divorce.

The fact of a divorce puts an end to any succession rights as you are no longer spouses. However, divorce does not automatically invalidate a Will in the same way marriage does. If you get married or enter into a civil partnership, any previous Will that you made is revoked. This means it cannot be enforced after your death. Unless you make a new Will after your marriage, you will be treated as though you have died without a Will. Your estate will then be distributed in line with the rules set out under the Succession Act. The only exception is where the Will is written ‘in contemplation’ of the marriage.

On the other hand, following a Court Ordered divorce, your Will will be upheld and if you die, any gifts to your ex-spouse will be honoured. However, your ex-spouse’s rights under the Succession Act will change. The main difference is that the taxation of transfers between you will be treated differently. While transfers between spouses are tax-free, following divorce, you will no longer be considered to be spouses. It is vital to be mindful that any transfer of property made without a Court Order after a divorce will not be exempt from tax. Furthermore, if following your divorce, you are passing assets to your former spouse, you will be deemed to be passing assets to a stranger and will only be eligible for the Class C threshold (currently €16,250) for gift tax purposes.

It is vitally important to keep your Will under regular review. If you are separated or divorced, you should not delay making or updating your Will.

 

 

By Aislinn Collins Solicitor.

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

 

January 2024 Wolfe & Co. LLP Solicitors