Separation and your estate when you do not have a Will (Wills & Estates)

As we mentioned in our last article it is not uncommon for parties to separate, and even have a property settlement but not legally Divorce. Unfortunately it is also not uncommon for people to forget to update their Will or to simply do a Will at all.

If you are not Divorced you are still considered to be “legally married” and your spouse would be entitled to your estate. Rules of intestacy would determine the Order of priority of persons entitled to the distribution of the estate and these are set out in Part 3A of the Administration and Probate Act 1919.

Section 72H deals with the Division of estate when deceased is survived by spouse and/or domestic partner. It states:

• If an intestate is survived by a spouse or domestic partner, the spouse or domestic partner (as the case may be) is entitled to any personal chattels of the intestate.
• If an intestate is survived by a spouse and a domestic partner, each is entitled to an equal share of the property (including personal chattels of the intestate) that would have devolved on the spouse or domestic partner if the intestate had been survived only by a single spouse or domestic partner.
• If a dispute arises between a surviving spouse and a domestic partner as to the division between them of personal chattels of an intestate, the administrator may sell the personal chattels and divide the proceeds of the sale equally between them.

We defined “spouse” in our last article. Domestic partner is defined to mean “a person declared under the Family Relationships Act 1975 to have been the domestic partner of the deceased as at the date of his or her death”.

Without a Will in place and without a grant of Divorce, the Court will grant administration of your estate in this instance to your former spouse. A final property settlement (either by way of an Order of the Court or Binding Financial Agreement) will not circumvent your former spouses right to administer and inherit your estate.

If you need to update or prepare your Will, Enduring Power of Attorney and/or Advance Care Directives, please contact our highly qualified lawyers at Weatherly & Associates on admin@weatherlylawyers.com.au.