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Can a forgotten child claim an inheritance when his father dies?

Father and son have not been in contact for many years since he married and had a family

A son of unmarried parents wonders if father's estate can be left entirely to his new family. Photograph: iStock
A son of unmarried parents wonders if father's estate can be left entirely to his new family. Photograph: iStock
Dominic Coyle's picture
Dominic Coyle
Tue Nov 19 2024 - 05:00

My partner’s father and mother were never married and they separated when he was young. My partner and his father (and his father’s family) appear to have been close when my partner was young until he was a teenager and my partner’s father married another woman. A wedge formed and they have been out of contact for many years.

My partner has half-siblings he has never met and doesn’t know if those siblings know of his existence. My presumption is that my partner’s father will leave all his estate to his wife and her children.

When my partner’s father dies will he be entitled to a share of his estate as his child? Ms CD.

Family rupture is always deeply upsetting. It seems very unfortunate that although your partner’s parents separated when he was very young, he had a good relationship with his father for many years only for that to be ruptured for whatever reason following his father’s marriage.

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In legal terms, regardless of the status of the family, children these days do have rights, but that does not mean that your partner will automatically inherit when his father dies.

There are two basic scenarios. If, like most people in Ireland, his father does not have a will and does not pull one together before he dies, his estate will be treated under the laws of intestacy.

Succession in intestacy is very straightforward and prescribed in legislation. As long as his spouse is alive at that time, she will get two-thirds of the estate. The remaining one-third is divided among his children – all his children – equally.

So, in that scenario, your partner would have claim to his share of the portion set aside for his father’s children alongside any children from his current family, and indeed any other children he may have fathered outside that family.

And if he predeceases his father, any children of your partner are entitled to share his share of the father’s estate equally between them.

As his half-siblings may not be aware of his presence, that might come as a bit of a shock to them, but so be it. Your father’s wife is presumably aware of your partner’s existence and will have first call on managing the estate in intestacy – or having a solicitor do it for her – so she should be in touch in that eventuality. But I wouldn’t bet on it. The truth is your partner will need to keep a weather eye on the death notices on RIP.ie or whatever unless there is some relative who would let him know if and when his father dies.

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Now children are only guaranteed an inheritance when there is no will. If there is a will and, let’s say, it leaves everything to his father’s wife – which would be very standard in Irish wills – then he will have no automatic right to any share in the estate. And if the father survives his wife and leaves his estate to his children – or even though she is still alive chooses to leave some part of the estate to the children – your partner still has no automatic right of inheritance.

There is nothing in law to say that a parent must provide for offspring in their will. There is, as it happens, legal protection for a spouse’s rights, called the legal right share. This means that a spouse has an automatic right to half of the estate when the other spouse dies where there are no children and a third where there are children. It means that even if a will leaves the spouse less than that, they can insist on getting that minimum portion of the estate.

There is no such provision for children. But it is possible for a child to challenge a will on the grounds that the parent did not and should have made provision for them – or did not make sufficient provision. Such a challenge is filed under section 117 of the Succession Act 1965, and that challenge must be filed within six months of probate being granted on the estate.

The basic test is whether a parent failed in the “moral duty” to provide for a child either in their will or otherwise while still alive. This failure or otherwise is assessed in line with the parent’s means.

As the legislation states: “The court shall consider the application from the point of view of a prudent and just parent, taking into account the position of the child to the testator and any other circumstances which the court may consider of assistance in arriving at a decision that will be as fair as possible to the child to whom the application relates and to the other children.”

Of course, such an action could prove expensive. The legislation does also note that the costs of any such proceedings “shall be at the discretion of the court”.

So your partner has no automatic right, but he may have grounds to challenge a will, given the rupture with his family as a young person, or he may have a right to inherit if there is no will.

Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street Dublin 2, or by email to dominic.coyle@irishtimes.com with a contact phone number. This column is a reader service and is not intended to replace professional advice

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