Family concerned over inheritance if father marries again

So I am a family of five. My mum died almost eight years ago. Dad is nearly 72 and has met a new woman who is nearly 10 years younger than him. They met not even a year ago and they are planning on getting married in September. Everybody can see she is after his property and money from day one. Our dad is blinded by love and she is ruling him.

If Dad doesn’t change the will or add her to it, is she entitled to everything if he passes away first? Or if she divorces him, will she be entitled to half of everything? Even though he has bought everything? Would there have to be a pre-nup in place. Without one, can she still take everything?

Ms SP

There is clearly a lot of unhappiness in at least part of your family about this latest turn of events in your father’s life, but I think the first thing everyone needs to do is to step back and consider your father’s position.

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His wife died eight years ago. That would have been a traumatic time for him, possibly extending across some years previously as well if she had been unwell. Like many people finding themselves suddenly single at that stage in their lives, he perhaps assumed that, in terms of romance, his moment had passed but he has met this new woman and, given their plans, he seems happy.

He has, on average, another decade to live and there is no reason why he should not live that life to the fullest. Assuming he is not in some way vulnerable and is as capable as yourself or any of the rest of us to make his own decisions, this seems like a cause for celebration, not dread.

Is it possible that he could be taken in by someone with ulterior motives and make something of a fool of himself in love? Of course, it is, just as it is possible for people in their teens, 20s, 30s and 40s et al to do so. But if it is a mistake, it is his mistake to make.

There are two unrelated things here. Clearly, this is a caring family, with you and possibly others worried that your father might make decisions that he regrets. That is perfectly normal. We regularly worry about family members but the nature of adulthood is that people get to make their own decisions and where others have concerns, ultimately they really can only stand by and ensure they are there for support if that proves necessary.

Then there is the issue of inheritance, which is always an exceptionally touchy subject in Ireland.

Given your father’s age, I am assuming you and your four siblings – which is what I presume you mean when you say you are a family of five – are all grown independent adults. On that basis, generally, you are not legally entitled to anything in his will anyway.

That is not to say that people do not make an effort to leave something behind for the next generations. In my experience, people are very keen to do so but it is not always possible or advisable. A person’s first responsibility with the money they have earned or accrued is to themselves.

There is a presumption in Ireland that families must inherit and that parents should be careful how they manage their assets in later years to ensure they are not “frittered away”. Personally, I find that it is a very odd and deeply disconcerting position.

Anyway back to your dad and his will.

The first thing to note is that whether he actively changes it or not, any existing will is revoked if your father marries this woman. So whatever provisions it currently contains will become irrelevant. The only exception to this is where the will is drawn up and worded in the clear expectation of the looming marriage but from what you say, that is certainly not the case here.

So if he does proceed to marry her, it would be important that he takes the time to draw up a new will – as she should.

If he dies before her, she is not entitled to everything. It is common that married people provide in wills for all their assets to pass to the surviving spouse. That is largely for tax reasons as no inheritance tax is due on assets passing between married couples. It is not an entitlement though it is certainly something they could choose to do.

In my experience, with second relationships where there are children from a previous marriage or relationship, it is less common.

There is, however, something called a legal right share. This is an amount a spouse is entitled to from the estate of their dead partner regardless of the wording of any will – unless they have specifically renounced their entitlement (in something like a prenuptial agreement or subsequently).

Under legal right share, a surviving spouse is entitled to half of their dead spouse’s estate where there are no children, or one-third where there are children. The same would apply in reverse if your father’s new wife were to die before him.

That’s the position if he does have a valid will in place when he dies. If he gets married and fails to have a new will drawn up, on his death he will be deemed to have died intestate.

In that event, his surviving wife would get two-thirds of his estate and you and your siblings would share the remaining third. If any of the siblings had predeceased him, their share of the one-third would be divided equally among any children they, in turn, may have had.

The same applies in reverse if he survives her. If she had no children and no will, he would inherit all her estate under intestacy.

It is worth noting as well that if he does marry, revoking the current will, and survives his new spouse but never makes a new will, the laws of intestacy say his full estate would be divided equally among his children with the same provision for any of his children who predeceased him.

If he divorces her, or she him, there is no automatic division of assets unless there was a prenuptial agreement in place. Otherwise, it would be by negotiation or, if that were not possible, by decision of a court. The circumstances of both parties is central to how that process works out – to ensure both have the means to find somewhere to live, for example. But consideration will also be given to which, if either, had made a greater contribution to their shared estate.

So if most of what they owned were things acquired by your father before the marriage, that would be a factor in any eventual outcome, which is not to say it is as simplistic as him keeping what he owned previously and her leaving only with what she owned.

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. This column is a reader service and is not intended to replace professional advice