having any succession rights against the estate of his cohabitant partner, has the right under Section 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 to apply to Court for it to make “proper provision” for him out of the estate of his deceased cohabitant, based on dependency factors set out in the section. Conflicts of Laws Ireland, like the UK, refused to opt into the EU Succession Regulation, which came into force in August 2015. Similar to the UK, our conflict rules provide that intestate succession to moveables is determined by the law of domicile at death and intestate succession to immovables by the law of the place where they are situated. Notwithstanding that neither Ireland nor UK participated in the EU Succession Regulation, Articles 21 and 22 thereof very usefully still allow nationals of both countries with assets within participating EU countries, by will or other formal legal document choose the laws of their nationality at death or on making of will to govern their succession ‘as a whole’, i.e. all matters of testate and intestate succession regarding their moveable and immovable assets. This is particularly beneficial for Irish and UK testators in avoiding forced heirship rules of civil law jurisdictions. identically the succession rights of civil partners with that of spouses10. Practically all references to ‘spouses’ in the Succession Act have the words ‘civil partner’ inserted thereafter, conferring the same rights under the section to civil partners as conferred therein on spouses. Children of a deceased civil partner are conferred with a right akin to a Section 117 of Succession Act application entitlement to seek increased statutory provision on intestacy to their deceased parent’s estate where he can prove that his deceased parent “failed in his moral duty to make adequate and just provision for him in his lifetime or on death.” No new civil partnerships can be entered into in Ireland since the enactment of the Marriage Equality Act 2015 on 16/11/15, unlike in the UK where civil partnerships are available for both same-sex and opposite-sex married couples. Same-Sex Marriage Under the Marriage Equality Act 2015 (effective as of 16/11/15) same-sex couples legally can get married in Ireland. They have the same rights and obligations towards each other as opposite-sex married couples. Cohabitants A qualified cohabitant11, whilst not THOUGHT LEADER 87 About Christopher Lehane Christopher Lehane is a practising barrister specialising in mainly succession law, personal insolvency law and mediation in Ireland. He also is a qualified mediator (Ciarb), pension trustee (QPT IIPM) and project manager (IPMI). He was called to the Bar in 1983 and commenced practice in 2020 on retirement from the High Court of Ireland, where he had served for 42 years. He was consultant on probate law to the Law Society of Ireland for 15 years and has recently written a substantial book on succession law in Ireland (‘Succession Law’, Bloomsbury Professional ISBN 9781526522245) that provides a peerless analysis of succession law, with extensive coverage of related issues such as tax, conveyancing, family law, enduring powers of attorney, limitation of actions, estate accounts, private international law and trusts. 1The law governing devolution of a deceased’s property determines in whom the property vests on death of deceased, whereas the law of distribution determines how and to whom it is distributed. Devolution means the passing of property from a person dying to a living person and in this context passing from a deceased to his legal personal representative. Once the estate property vests in the legal personal representative under section 10 of the Succession Act 1965, he is then obliged to distribute it in accordance the will or on intestacy of the deceased to his next of kin. 2A spouse / civil partner is not ‘kin’ as he/she is not a blood relative and his/her succession rights derive on foot of the marriage / civil partnership. 3A child in the womb at date of death of the deceased is deemed in law as having been born in his lifetime and survived the deceased once, he actually survives the deceased. Section 3(2) of Succession Act 1965 states, “descendants and relatives of a deceased person begotten before his death but born alive thereafter shall, for the purposes of this Act, be regarded as having been born in the lifetime of the deceased and as having survived him.” 4Grant of Administration – In all cases where a person dies solely owning immovable assets and in many instances where he owns moveables (e.g. where account amounts exceed generally €10,000 and financial institutions require one to release funds), it is necessary to extract a Grant of Administration from the Probate Office in Dublin or a local probate registry. 5All reference to males in table is equally applicable to females. 6Note that ‘Issue represents a man ad infinitum’ i.e. as long as a man leaves a child/grandchild etc. and his spouse alive at his date of death, that child/grandchild etc will inherit (the 1/3 interest, with the spouse inheriting the other 2/3). 7‘Half-blood’ means the relative shares a common parent with the deceased, unlike a step relative who shares no common parent, therefore no common blood and hence no succession rights which are based on blood relationship. 8Meaning that the child’s succession rights to all kin remoter than his parents and their succession rights to the child are determined irrespective of whether the child’s parents were married to each other at the birth of the child. 9Section 60 subsections (1), (2) and (5) of the Adoption Act 2010 which Act consolidated adoption law in this area. 10Section 73 of the 2010 Act inserts a new Section 67A into the Succession Act, conferring succession rights on intestacy to a surviving civil partner. 11Section 172(5) of the 2010 Act provides that “a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period— (a) of 2 years or more, in the case where they are the parents of one or more dependent children, and (b) of 5 years or more, in any other case.” The Act, in conferring rights on cohabitants, makes no distinction between couples of the opposite sex and couples of the same sex and seeks to provide for the rights of persons in long-term cohabitating relationships who have not married nor entered into civil partnerships. Contact Christopher Lehane Barrister Law Library, Four Courts, Dublin 7, D07 N972, Ireland Tel: +353 87 650 2656 E: christopher.lehane@lawlibrary.ie
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