Stepchildren and inheritance can be somewhat contradictory in Irish law as they appear to be regarded differently according to two relevant pieces of legislation.

Answering a legal question in this week’s Irish Times, Dominic Coyle was asked about a case relating to a man’s stepmother. The woman who had brought up Mr MT and his older brother was not their birth mother but had done so since they were toddlers. She died in June without leaving a will. The man had received advice that he get legal representation for himself and his brother. While the man’s father and stepmother never had children themselves, the stepmother had two surviving brothers and a sister.

The man’s father died in 1988.

Dominic Coyle advised that while there was no obligation for the brothers to appoint a solicitor, as the law was generally an area unfamiliar to most people and because of the emotions involved in a complex family structure, it might be wise to talk to a solicitor.

Succession Act

He quoted the relevant acts—the Succession Act, dating back to 1963 and the 2003 Capital Acquisitions Tax Consolidation Act. In the latter, legislation that governs the allocation and taxing of benefits in a Will, Section 2 explains the meaning behind terms used. It specifies that the definition of a child includes a stepchild and any child adopted under the Adoption Acts 1952 to 1998, or under foreign adoption orders.

According to this act, a stepchild or an adopted child has the same status (and would be taxed accordingly). If the brothers are to inherit from their stepmother, they are entitled to receive the same as any other child. The tax threshold for inheritance in Ireland is currently €320,000.

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However, Mr Coyle added that the tax position is only relevant if, in general, there is a Will. Here, the two pieces of law seem to contradict each other. The earlier Succession Act specifies what happens when someone dies without having made a will—i.e. intestacy. In this act, there is no similar definition of stepchildren. The Act sets out who has the prior claim to the estate. If the person has no children, that would be the spouse, but in this case, the order of succession doesn’t apply because the brothers’ father is dead.

Definition of ‘issue’

The Succession Act refers only to ‘issue’ rather than children, and ‘issue’ would divide the estate equally between themselves. But the definition of issue here does not include stepchildren or foster children.

Mr Coyle attributes this partially to the age of the Succession Act and that appears not to have been updated. Yet again the case, he said, reinforces why it is so important to make a will as the brothers’ stepmother’s siblings are entitled to inherit.

One aspect that might work in the brothers’ favour is if their father left a will and if he made any provision for his sons in this document. Otherwise, they might need to come to some agreement with the stepmother’s brothers and sister.