How the share works: election
Where a will leaves the spouse a bequest, the spouse must choose, elect, between taking that bequest and taking the legal right share; the personal representative is obliged to notify the spouse in writing of the right of election, and the election must be exercised within the statutory period of twelve months from the grant, or six months from the notification, whichever is later. Where the will leaves the spouse nothing, the legal right share applies without any election. The arithmetic of election is rarely trivial in estates of substance: a bequest of the family home and a fund may be worth more or less than one third of an estate whose main asset is a farm, and the choice deserves real analysis, with specialist tax advice obtained on the alternatives.
The family home: appropriation
Section 56 of the Act gives the surviving spouse the right to require the dwelling in which they ordinarily resided, and its household chattels, to be appropriated towards their share. Where the home is worth more than the share, the spouse may make up the difference; where the dwelling is part of a larger holding, a farmhouse on the land being the constant South-East example, appropriation may require the court's sanction because separation of house from farm can diminish the whole. These provisions decide, in a great many rural estates, whether the widow or widower keeps the house, and they need to be worked through early in the administration rather than discovered late.
Renunciation, separation and divorce
The legal right share can be renounced in advance, in a pre-marriage agreement or, most commonly, in a deed of separation in which each spouse renounces rights in the other's estate, and such renunciations are effective if properly made. Divorce ends succession rights entirely, though a financially dependent former spouse may in limited circumstances apply for provision from the estate where no blocking order was made in the divorce. Where spouses were separated but nothing was ever signed, the legal right share generally survives, a fact that surprises families regularly and features in a steady stream of contested administrations. Desertion and certain conduct can disqualify, but the bar is high.
The share in contested and farm estates
Because the legal right share ranks ahead of all bequests, it reshapes every other entitlement the moment it is asserted: legacies abate, the farm gift is encumbered, and section 117 claims compete only for what remains after the spouse. Executors must approach the share with complete neutrality, notify correctly, value fairly and fund lawfully, because errors here are personal. Second marriages produce the sharpest cases, a late marriage creating a one-third claim across an estate the first family regarded as theirs, and both the planning that anticipates such claims and the administration that resolves them benefit from trust and estate expertise.
Frequently asked questions
Can a will leave a spouse nothing?
A will can say so, but the law overrides it: the surviving spouse's legal right share, one half with no children, one third with children, applies regardless of the will's terms unless validly renounced or lost.
We were separated but never divorced. Does the legal right share still apply?
Usually yes, unless succession rights were renounced in a separation agreement or blocked by court order. This should be checked in every administration involving separated spouses.
Can the surviving spouse keep the family home?
The spouse can generally require the home and contents to be appropriated towards their share under section 56, subject to the statute's conditions, including court sanction in certain cases such as a dwelling forming part of a farm.
To discuss a matter in confidence, contact Richard O'Shea at Mary Molloy Solicitors, 2 Rose Inn Street, Kilkenny. Arrange a consultation. This page is general information, not legal advice.