When couples break up, their primary concern is inevitably their immediate living arrangements – custody of the children and who stays in the family home. However, there are two areas that might not seem so important while you are in the midst of a painful split but which will have a significant impact further on down the line: inheritance rights and the pension. Both need to be addressed as soon as possible.

Inheritance rights

Under Irish law, spouses are automatically entitled to a share of their partner's estate in the event of their death, regardless of what they might have specified in their will or, indeed, if there is a will in place. In cases where a will exists and there are children involved, the spouse is entitled to a third of the estate even if it has been bequeathed as a whole to a third party. Where there are no children involved, they are entitled to half the estate. Where no will is in place, the laws of intestacy apply so if there are no children, the spouse is entitled to the entirety of the estate and if there are children, the surviving partner is entitled to two-thirds of the estate.

This is why it is key that couples who break up endeavour to get their house in order as quickly as possible. When couples live apart informally, they retain their inheritance rights to each other's estates (though where this informal separation lasts longer than two years, desertion clauses can be applied). It is important, therefore, that a separation agreement is put in place as soon as possible to ensure both parties are protected. Usually, in a separation agreement, the spouses will renounce their statutory right to a share in the others estate.

If a partner dies before a separation agreement is in place, inheritance rights remain in place and, where property is concerned, it can be complicated. Much will depend on whose name was on the title deeds, says Barry Kennelly, solicitor and associate director with Astons.

"It is common for a family home to be owned by both spouses as 'joint tenants'. In that case, the property will pass automatically to the surviving spouse on the death of the other spouse. Each spouse could have a separate interest in the house. In this case, the deceased spouse's share in the family home would pass under the terms of that person's will or under intestacy rules if there is no will. The other spouse would still have rights against the remaining spouse's assets on his of her death, which could include the remaining spouse's interest in the family home," he said.

When a divorce becomes final, both parties lose their inheritance rights.

Pensions

While it is possible to settle inheritance rights in a separation agreement, pensions require judicial intervention. The pension fund is becoming increasingly important to couples who can no longer rely on booming property prices to bolster their assets, says Tommy Nielson, director of the Independent Trustee Company.

"While the family home now becomes the family loan, the pension is fast becoming the most lucrative asset in a marriage. Countless phone calls by panicking lawyers to trustees of pension schemes from the steps of the family law courts bear witness to the fact that what is perhaps the most valuable matrimonial asset gets little attention – to the detriment of the parties involved. The wife may take the heavily indebted family home and the liability of raising the children; in fact she may be, involuntarily, setting the husband up for a comfortable retirement," he says.

Courts can make a Pension Adjustment Order (PAO) in judicial separation and divorce proceedings where they instruct the trustees of a pension fund to make provision for the holder's spouse based on the value accrued at the time that the order is made. This PAO can relate to retirement benefits or contingent benefits where the pension holder dies before normal pensionable age. A PAO is not possible in separation agreements so any promises made between amicable spouses have no legal standing, says Fionan O'Sullivan, director of IFG Corporate Pensions.

"Some separation agreements may seek to adjust a policy holder's pension rights but these provisions will not be legally binding against the parties or against the scheme trustees. In other words, separation agreements cannot divide a member's pension benefits. Neither can they dictate who is to be the recipient of lump-sum death benefits payable from personal pension contracts or occupational pension schemes," he says.

The pensions area is a complex one so if you are considering separating, you should consult with legal and pension experts to find out where you stand.