Finding out that a will leaves a spouse or civil partner less than they expected can be deeply upsetting at an already hard time. Irish law built a protection against this. The legal right share is a guaranteed minimum woven into the inheritance rights of a surviving spouse or civil partner — one the will cannot take away. This guide explains how it works, in plain terms.
The legal right share is one of the most common reasons a will is questioned. It sits alongside other grounds for contesting a will in Ireland, though it is not really a dispute at all: it is a clear statutory entitlement. This article covers the shares, how they override a will, the right to keep the family home, and the time limits that apply.
What is the legal right share?
The legal right share is a fixed entitlement that the Succession Act 1965 gives to a surviving spouse or civil partner, no matter what the deceased's will says. It is set by law as a fraction of the estate. A person making a will is free to leave their property as they wish, but they cannot use the will to give a spouse or civil partner less than this protected minimum.
The size of the share depends on one fact: whether the deceased left children. If there are no children, the spouse or civil partner is entitled to one-half of the estate. If there are children, the entitlement is one-third of the estate. The table below sets out both situations alongside the relevant section of the Act.
Surviving spouse or civil partner, no children
One-half of the estate
ss. 111(1) / 111A(1)
Surviving spouse or civil partner, with children
One-third of the estate
ss. 111(2) / 111A(2)
The legal right share under the Succession Act 1965. Section 111 covers spouses; section 111A (inserted by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010) covers civil partners. Source: Irish Statute Book / Law Reform Commission.
| Family situation | Legal right share | Succession Act section |
|---|---|---|
| Surviving spouse or civil partner, no children | One-half of the estate | ss. 111(1) / 111A(1) |
| Surviving spouse or civil partner, with children | One-third of the estate | ss. 111(2) / 111A(2) |
The fractions are identical for spouses and for civil partners. Section 111 sets the share for a surviving spouse, and section 111A — added in 2011 by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 — mirrors it exactly for a surviving civil partner. The same one-half / one-third rule applies to both.
How the legal right share overrides the will
Section 112 of the Succession Act 1965 states that the legal right of a surviving spouse takes priority over gifts in the will (whether of land or money) and over any share the spouse would have received if there were no will at all. In plain terms, the spouse's protected share comes off the top before the rest of the will takes effect. The same protection applies to a surviving civil partner.
This is why a will cannot disinherit a spouse or civil partner. If the will leaves them less than their legal right share, they do not simply lose out. The Act lets them claim the legal right share instead, and that claim is paid ahead of the gifts the will makes to other people.
Where the will already leaves the spouse or civil partner more than their legal right share, there is usually nothing to do — they can simply take the larger benefit. The legal right share matters in practice only when the will gives them less than the law guarantees.
The right of election and its time limits
Where there is a will, the surviving spouse or civil partner usually has a choice under section 115 of the Succession Act 1965: take the gift left to them in the will, or take their legal right share instead. This choice is called the right of election. It cannot be ignored, because it is subject to a strict deadline.
The personal representative — the executor or administrator handling the estate — has a legal duty to notify the spouse or civil partner in writing of this right of election. That written notice is significant because it starts one of the two clocks that govern the deadline.
How the election works in practice
The right to choose the legal right share over a will benefit follows these stages. Take advice early, because the deadline can pass without warning.
Wait for the personal representative's written notice
The executor or administrator must tell the surviving spouse or civil partner, in writing, about the right of election under the Succession Act 1965. That written notice starts the formal clock. Until it arrives, the only outer limit is the one-year period measured from the first grant of representation.
Compare the legal right share against the will
Work out, with figures, what the legal right share is worth — one-half of the estate if there are no children, or one-third if there are. Then compare it to what the will actually leaves the surviving spouse or civil partner. The election only matters if the will gives less than the legal right share; if it gives more, there is usually nothing to elect.
Make the election within the time limit
The right to elect ends six months after the spouse or civil partner receives the personal representative's written notice, or one year after the first grant of representation is issued — whichever is later. Choosing the legal right share over the will benefit is a formal step, normally made in writing to the personal representative.
What happens if you miss the deadline
If no election is made in time, the surviving spouse or civil partner is treated as taking whatever the will leaves them, and the legal right share is lost. The deadline can pass quietly — so confirm the dates early and take advice before the window closes.
The right to keep the family home
A surviving spouse or civil partner often wants to stay in the family home rather than see it sold to divide the estate. Section 56 of the Succession Act 1965 helps with this. It lets the survivor require the personal representative, in writing, to set aside (appropriate) the dwelling they were living in — and the household contents (chattels) — towards their share of the estate.
Setting aside the home like this counts towards what the survivor is owed from the estate. If the home is worth more than their share, they may need to pay the difference into the estate. Where that would cause hardship, they can ask the court to let them keep the home by paying a lesser amount the court considers fair.
This right carries the same deadline as the right of election: it must be exercised within six months of the personal representative's written notice, or one year from the first grant of representation, whichever is later. Where a home was owned as joint tenants, it normally passes automatically to the surviving co-owner and falls outside this process entirely.
Tax on the legal right share
Inheritances passing between spouses, and between civil partners, are exempt from Capital Acquisitions Tax (CAT) in Ireland. This means a surviving spouse or civil partner does not face a CAT bill on the legal right share itself, no matter how large the estate. The exemption is one of the clearest features of Irish inheritance tax.
Tax can still arise elsewhere in the same estate. Children and other beneficiaries have their own CAT thresholds, and gifts to them may be taxable even though the spouse or civil partner is exempt. If you are a beneficiary other than the spouse or civil partner, our guide to the rights of a beneficiary in Ireland explains what to expect.
Where children fit in
The legal right share protects the spouse or civil partner, but it is not the only protection the Succession Act 1965 contains. Children do not have a fixed share of a parent's estate where there is a will. Instead, a child who feels they were not adequately provided for can apply to court under section 117 of the Act.
A section 117 claim is separate from, and works differently to, the legal right share. The spouse or civil partner's share is fixed and automatic; a child's claim is discretionary and decided by the court on the facts. For how a child's claim works, see our guide to the section 117 claim for a child in Ireland.
Getting advice on the legal right share
The legal right share is a clear entitlement, but the figures and deadlines around it are easy to get wrong. Valuing the estate correctly, comparing the share to the will, deciding whether to elect, and handling the family home all benefit from professional input — particularly where the estate is large, the will is contested, or family relationships are strained.
The Courts Service has its own guidance on how probate works. If you are a surviving spouse or civil partner and you are unsure whether the will covers your legal right share, take advice before the election deadline passes — once it does, the share can be lost.