Children born outside marriage and intestacy

10 February 2022


In intestacy cases there are certain key rules that we all keep in mind. For example, we know that the share of a pre-deceased child is preserved for any living issue. Likewise in respect of children of a pre-deceased brother or sister (ie the per stirpes rule). But what of situations of children born outside of marriage. What is their position?

As a reminder, s. 67 of the Succession Act 1965 (SA 65) was the provision which covered this. So, that section said that where a person dies with no spouse and issue, the issue inherits per-stirpes. These provisions were contained in s. 67 (3) and (4). In fact, due to amendments to deal with civil partnership, these provisions have now been moved to s. 67B of SA 65. So the rule hasn’t changed (even if its legislative home has), namely where a person dies with no spouse and children surviving the children inherit equally. In fact the section makes reference to issue, rather than children. Section 3(3) of SA 65 sets out how per-stirpes works for old 67(4).

The term “issue” was not defined in SA 65. So, the fact that children born outside marriage were not included within the term “issue” was a matter for common law. If a child was born outside of marriage they were not issue of the deceased. There was a possibility of them being treated as issue, if the parents married. This was under s. 1 of the Legitimacy Act 1931.

The Status of Children Act 1987 (the 87 Act) changed this. It did this by the provisions of s. 3(1) of the 87 Act, which provided:-

3.—(1) In deducing any relationship for the purposes of this Act or of any Act of the Oireachtas passed after the commencement of this section, the relationship between every person and his father and mother (or either of them) shall, unless the contrary intention appears, be determined irrespective of whether his father and mother are or have been married to each other, and all other relationships shall be determined accordingly.

So, there was no amendment per se of SA 65 to say, “the term issue now includes children born outside marriage” or anything of that nature. It just provided that the marital status of the parents are irrelevant in determining whether a child constitutes the issue of their parents.

Keeping up to date with intestacy rules is not childsplay

The key date is the 14 June 1988, which is the date of commencement of the section. The key fact is the date of death of the deceased intestate. The date of birth of the child or such factors are irrelevant.

So, for example, John and Mary were not married when their son Patrick was born in 1972 and in fact they never married. John died in 1986 and Mary died in 1989 and both died intestate. Patrick does not share in John’s estate but he does share in Mary’s estate.

These rules, are particularly important when looking at historical intestacies.

Hope this helps and if you have any queries in relation to probate, will drafting or tax matters, please reach out at