Question: I am a married woman with two small children. My husband has a child from a previous relationship. I was wondering if this child would have any Inheritance Rights with regard to my husband’s property and in what way, if any, could this child affect any inheritance rights for our children?

Answer: The child that your husband has from a previous relationship has the same inheritance rights as your children. Under our constitution and our law, all children, have equal rights to property and maintenance.

This is as a result of The Status of Children Act which was introduced into Irish law in 1987. In simplistic and general terms, once a natural child (formerly illegitimate) can prove that the deceased is their father (or indeed a mother) they can be successful in making a claim in a deceased parent’s estate. The Act abolished the concept of illegitimacy making the inheritance rights of all children equal be they born within or outside a marriage. Previous to that, any non-marital child was not entitled to share in a deceased parent’s estate. Of course, each individual case would need to be looked at but in general terms the following scenario would apply:

1.Adopted Children

IF the mother of your husband’s child has married and her husband has adopted the child, then this adoption severs all inheritance rights that the child may otherwise have to your husband’s estate. In effect, the adopted child becomes the child of the adoptive persons and no inheritance rights apply.

2. Where there is a Will.

It is up to each individual person as to what they wish to put in their Will. They may wish to provide for all of their children .On the other hand, if it is the intention of a person making a Will to exclude a non-marital child from a Will, this must be specifically stated in the Will. A suggested clause that could be inserted in a Will to exclude the operation of the Act would be:

“I HEREBY DECLARE that in this my Will, any reference to my children shall be a reference only to children born within lawful wedlock”

However, if such a clause is put in, under the Succession Act 1965, a non-marital child may be successful in bringing a claim for a share in the estate of their deceased parent even if the parent sought to specially exclude the child from the Will.

To do this, the child must establish in court that the parent failed in their duties as a parent during life to make proper provision for the child in accordance with the parent’s means.

Whilst there are no reported cases on applications such as this to date, it is likely because these types of cases are becoming more familiar that such a claim could arise in the near future and it would be interesting to see the view of the High Court on such applications.

3. Where there is no Will

Where, as in the current scenario your husband were to die without making a Will and leaving him surviving you and your own two children , and his child from the previous relationship, you take two-thirds of the estate and the remainder is to be distributed amongst all the children equally. This includes non-marital child.

Once it is proved that the child is the biological child of the father, and the child makes a claim on that basis ,then that child is equally entitled with his/her half brothers and sisters to a share in his/her natural father’s estate. If this is not what the father wants, then it is important that a Will is made specifically seeking to exclude this occurring.

4.Conclusion

The Status of Children Act only applies to deaths after 14th June 1988. Its primary object was to abolish the stigma attached to children born out of wedlock who had little or no rights up to that.

If you have concerns about this matter, you and your husband should seek professional advice and plan accordingly.

Myra Dinneen

Published: West Cork People August 2009