In relation to Wills for divorced or separated persons a range of circumstances and criteria can apply. Each case must be looked at in accordance with their specific circumstances, but the following should be a helpful general guide of some key principles.
Does the legal right share still apply?
A person who is separated from their spouse is free to make whatever Will they wish. However, if they remain married and are not officially separated in some way, then the forced heirship rules in Ireland apply. These rules are referred to in Ireland as the legal right share. There is an obligation in Ireland for a spouse to leave their partner at least one-third of their Estate. You cannot ignore this right if you remain married. If you do, then your spouse will have the right to challenge your will after your death to claim their one third share. However, this legal right share can be extinguished by mutual written agreement between the parties.
Separation Arrangements
A solicitor will find it difficult to draft a Will for you if you are separated or divorced unless you are clear as to the nature of your relationship with your former spouse. The most common form of separation situations that apply in Ireland are outlined here:
This is an agreement between the parties whereby they agree to regulate their relationship after they have separated, regulate the assets between them, cater for maintenance payments, access and custody of their children and a range of matters. Neither party would be free to marry another person by the entering into a Separation Agreement, but it is recognised as a tried and trusted method whereby parties can, if they remain on relatively civil terms, agree to the relationship going forward. A separation agreement will extinguish succession rights and allow parties to make whatever provision they wish in their wills.
In the event that parties are not in a position to enter into a Separation Agreement, they may seek a judicial separation. This is where the parties seek an Order from the Court confirming that the relationship is at an end and imposing between the parties a range of Orders which would regulate the relationship going forward, to include dealing with their matrimonial property, access to children, maintenance payments and other arrangements. A judicial separation is not the same as a decree of divorce and the parties are still not free to marry afterward. However, if they have obtained a Judicial separation Order, their succession rights between them will have extinguished.
Judicial separation was normally obtained in Ireland due to the fact that you had to be separated for a period of four years before one could obtain a decree of divorce. Now that period of separation is reduced to two years. Parties may wait the two years now to proceed with their divorce rather than obtaining a judicial separation. An order for divorce would contain an order regulating the relationship between the parties and it also extinguishes between the parties their mutual succession rights. Importantly it permits the separating parties to remarry.
If it is the case that you were divorced or separated abroad then you must provide this information to your solicitor. In some cases even though you are validly separated abroad, that separation may not be recognised in Ireland. Each case would have to be looked at on its own merits. A foreign divorce will be recognised in Ireland if it is granted in the country where one of the parties is domiciled.
Points to consider when a separated person has remarried
If a person is divorced there are a range of circumstances and criteria which a person making the Will will need to consider. Principally, a person who is divorced, if they have had children in a previous marriage and also have children of a new relationship, they will wish to cater for the children of those relationships. Each of those children will be the beneficiary of the Class A threshold from a tax perspective and so there will be a wide degree of flexibility for a separated person to leave assets to the children of their former marriage and any new children where they wish to do so. Under current rules (July 2020) this means a person can leave a child of either relationship up to €335,000 tax free. If they have remarried, the children that the other spouse brought to the marriage (ie their step children) will also be treated as Class A. They can also be considered as beneficiaries of their Will if they so wish. The tax is 33% above the threshold.
A person who is divorced and remarried will have the flexibility of leaving the entirety of
their Estate tax free to their new spouse if they so wish, or they can leave assets between the children of their former relationship and their new relationship if they so wish. A persons ex- spouse will be treated as class C (ie stranger in blood) and at the time of writing (July 2020) are entitled to inherit €16,500 tax free from their former spouse.
It should be noted that the former spouse will remain the guardian of the children of that
relationship. A person may appoint their new spouse as testamentary guardian for children of a former marriage or new marriage. The former spouse may challenge the appointment of a testamentary guardian. Likewise a testamentary guardian may challenge the guardianship of the former spouse. It should be noted that guardianship only applies in respect of children who are under the age of 18 and once a child is over the age of 18 they will no longer require the appointment of a guardian. It should be noted that older children can be appointed as guardians of their younger siblings, but there is no automatic right of guardianship of a sibling over younger siblings.
Considerations where the separated partner has not remarried
If the separated spouse is not married, then, that person has the flexibility of availing of the Class A threshold for their children. They may also leave assets to brothers or sisters, aunts or uncles etc (who are known as Class B recipients). This means that they can leave a benefit of up to €32,500 to such a person without any tax being paid. Gifts to other persons can be up to class C (that is up to €16,250 before tax is paid). Tax is 33% of the benefit above the threshold.
The former spouse of a separated person remains the guardian of the children of that relationship. A cause of concern for many separated and unmarried persons who have young children is that on death their former spouse could rear the children of the marriage. One of the common reasons for a marriage to break up is the unsuitability of one of the partners to the relationship at rearing children. In such circumstances the separated person can appoint a testamentary guardian. The testamentary guardian can challenge the appointment of the natural guardian, and vice versa. Whether guardianship survives a challenge will depend on the facts of each case, but the courts do tend to favour appointing natural guardians over testamentary guardians.
Effect on wills
Wills made during a marriage are not revoked by a divorce. So once succession rights have been extinguished a married person should make a new will. A subsequent marriage will revoke any previously made will so it is generally advisable that a new will be done after marriage. It should be noted that a will can be made in contemplation of marriage which will not be revoked by that marriage and that is recommended for couples. The sooner a will is completed the better.
For more general information, please check out our Frequently Asked Questions (FAQ). This will give you some further information which applies to all wills including this case.