Separation and your estate when you have a Will ( Wills & Estates)

Separated but not divorced?  Your former spouse might still have a claim against your estate.

It is not uncommon for parties to separate, and even have a property settlement but not legally Divorce.  It is important to know however that this can leave your estate open for your former spouse to make a claim despite your intentions being clear in your Will.

Succession laws provide that a person has a legal and moral obligation to provide for financial dependants, including but not limited to their spouse and children.  Spouse is defined in South Australian legislation under the Administration and Probate Act 1919 to be “in relation to a deceased person, means a person who was legally married to the deceased as at the date of his or her death”.  The only way to sever this relationship and obligation is to obtain a Divorce.

That being said your spouse can only make a claim under the Inheritance (Family) Provision Act 1972 and must prove that there is a legal and moral obligation for him or her to receive consideration.

It is imperative that after separation and/or divorce that each party updates their Will. If you do not have a Will you are considered to have died intestate and we will deal with the resulting effects in a follow up article, but in short your estate is likely to go to your former spouse.

It is a very good idea for parties to also update their Enduring Powers of Attorney and Advance Care Directives.  If you do not do so and become incapacitated your former spouse may have all rights to make financial and medical decisions on your behalf.

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 onadmin@weatherlylawyers.com.au.