A s. 117 claim cannot arise in the case of intestacy. However there are some exceptions. In particular s. 67A(3), which provides that s. 117 does apply in the case of civil partnership but only where the civil partner dies leaving a civil partner and one or more children. So take the example of John and Michael who have entered into a civil partnership. John had three children, Mary, Susan and Sean. If John dies with Michael surviving all of Mary, Susan and Sean surviving, then, one of those children could take a s. 117 if John died intestate. Mary, Susan and Sean would have a right to a third of John’s estate. However, if they were dissatisfied with this they could potentially bring a s. 117 claim. Mary, Susan and Sean would have to be children of John:-

• from a previous marriage;

• from a non-marital relationship; or

• children adopted by John.

That is John’s children.

If Michael had children from a previous relationship, then, those children could not take a s.117 action against John’s estate.

This section was further amended by s. 67 of the Children and Family Relationships Act 2015. This introduced a new s. 67A(3A). This states as follows:-

“(3A) An application may not be made under subsection (3) by or on behalf of a child of an intestate where that child is also the child of the surviving civil partner.”.

So if John and Michael had adopted Tony as their child jointly, and John died intestate, then Tony could not claim under s. 117. Similarly, if Elizabeth and Maria who are in a civil partnership have a child through donor conception, then that child also cannot bring a s. 117. However, those children do get a one-third share of the estate of the intestate in the normal course. It’s just that they have no basis for altering their share.

It should be noted that these rules only apply to children in the context of civil partnership. It doesn’t apply where the same sex couple are married. There is no room to bring a s. 117 in that case where one of the parties to the marriage dies intestate.

Hope that helps. It may be somewhat narrow but it could come up in practice.

As an aside, it should be noted that s. 67A(3A) came into operation on the 4th of May 2020 (see S.I. 624 of 2019). This is not reflected in the current consolidated version of the Succession Act published by the Law Reform Commission which is only up to date as of the 18th of January 2016. That is some seven years ago and therefore the consolidated Succession Act is really due for revision by the Law Reform Commission.

Remember, you have probate, will drafting or tax issues, please reach out through our query service on the website. Colm Kelly