Question: My son got married late in life and his wife has children from a previous marriage. While I have always intended to pass the farm to my son, I am now reluctant to do so. While I am very fond of the children, they are not my grandchildren and I would prefer to leave the farm to my own family. Have you any advice?
Answer: If your son is farming and the intended successor, I would suggest you need to talk to him about it. While I appreciate that it is a very sensitive and emotional discussion, the risk of not discussing it and making a decision yourself could impact your long-term relationship.
My own personal view is that the most important part of any succession conversation is to try and preserve family relationships and while I appreciate that might not always be achieved, talking about the issue generally helps to minimise conflict. That said, I will set out the legal rights of non-martial children.
Adopted children
Under the Status of Children Act, an adopted child shall be deemed from the date of the adoption order to be the child of the adopted parents and not the child of any other persons. Adopted children are not entitled to any portion of their natural parent’s estate.
However, they can avail of the Group A CAT threshold from both their adopted and natural parents. They do not have any Succession Act rights from their natural parents but do have Succession Act rights from their adoptive parents.
Step-children
On the other hand, a stepparent, in relation to a child, is understood as being a parent who is:
• not the parent of the child but is married to a parent of the child and
• treats, or at any time during the marriage has treated, the child as a member of the family formed with the parent.
There is no actual legal obligation to provide for stepchildren. As they are not ‘children’ of the stepparent, they are not entitled to make an application under S117 of the Succession Act and are not entitled to a share on intestacy.
A stepchild for tax purposes is deemed to be a child of the stepparent and can benefit from the Group A thresold. However, they do not have Succession Act rights in relation to the stepparent’s estate.
Foster children
Similarly, there is no legal obligation to provide for foster children. Foster children are not entitled to make an application under S117 of the Succession Act and are not entitled to a share on intestacy from the foster parent’s estate.
A foster child is a child that has resided with the foster parent and was under the care and maintenance of the foster parent at the foster parent’s expense for a minimum of five years before the foster child’s 18th birthday. In these circumstances, the foster child can avail of the Group A threshold for CAT.
Spouses rights
If your son predeceases his wife, his wife would be entitled to whatever is left to her under his will or she can take her Legal Right Share (LRS). Under the LRS, a spouse is entitled to claim half of the estate where there is a spouse and no children, or one third of the estate where there are children. However, ‘children’ refers to children of his blood or children validly adopted by him.
Thus, if your son made a will leaving the farm back to his parents or his siblings and he died before his wife, she is entitled to take her LRS, which could amount to half of his estate (assuming he has not adopted the children). However, she is not obliged to take the 50% share and can take whatever is left to her under the will.
In the event that your son made no will, she would inherit the entire estate under the rules of intestacy.
In summary, unless your son adopts the children, they are not regarded as your son’s children for Succession Act purposes, although for taxation purposes they are. You may decide to leave the farm to your son as originally intended on the basis that he will make a will leaving the farm to his siblings on his death. Your son’s spouse can renounce her right to the Legal Right Share. Renunciation is final. Given this knowledge, you may well change how you direct your estate to be divided.
Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors and Tax Consultants does not accept responsibility for errors or omissions howsoever arising. Email aisling@agrisolicitors.ie
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