Does a former spouse or de facto have any claim or entitlement under your estate if you die?
Yes, they can make a claim on your estate if you die.
A former spouse and de facto partner are classed as ‘eligible persons’ under section 57 of the Succession Act 2006 (NSW) (the Act).
However, while they may be eligible to claim on your estate, that does not mean they will be successful in making a claim.
“Eligible persons” can apply to a court to make a Family provision order. In assessing any application, the court must take into account the whole of the circumstances, including any past or present factors that could establish and warrant the making of such an order.
The whole of the circumstances may include things like if there has already been a property settlement and the parties have agreed not to make any future claims against each other’s estates.
However, those factors may still not guarantee a claim not being entertained by a court.
An example may be if there has been a change in the circumstances since the original property settlement orders were made causing the court to readjust the claim of the applicant (former spouse/de facto) against the estate.
A way to ensure such a claim cannot be bought against your estate is through section 95 of the Act.
As such, in making any decision to prevent a claim, the court must consider things including:
- Whether there is, or was at the time any agreement to prevent the making of a claim, and
- Whether one was made or intended to be made to release any party, and
- Whether it was at the time prudent for the releasing party to make the release, and
- Whether the provisions of any agreement to make the release are or were at the time fair and reasonable, and
- The releasing party took or has taken independent advice in relation to the release, and if so, they gave due consideration to that advice.
Does divorce or separation revoke a Will?
The short answer is No.
Separation is the act of ending a marriage or de facto relationship where you are no longer a couple.
Divorce is the ‘legal ending’ of a marriage.
If you are ending your marriage, you must be separated for at least 12 months before being eligible to apply to the court for a divorce.
In de facto relationships, there is no legal equivalent to becoming ‘divorced’.
Former Spouses
A Will is not revoked through a divorce.
However, under section 13 of the Act, divorce does affect the terms of your Will.
A divorce or annulment effectively provides a revocation of:
- Any beneficial disposition (a gift) to the testator’s former spouse at the time of the divorce or annulment; and
- Any appointment of the former spouse as an executor, trustee, advisory trustee, or guardian made by the will; and
- Any grant or power made by the Will in which there is an exercisable right by the former spouse.
The exception is if there is written into the Will that the former spouse has an entitlement or right to claim those gifts, entitlements, and or exercise of powers.
If you do not want your former spouse to have any control over your estate, you must change your Will as soon as possible.
Also, if you separate from your spouse and do not divorce, then the Will, unless you intentionally change it, may still be valid upon your death increasing the chances of the making of a family provision order.
Former de-facto partners
Similarly, a Will is also not revoked by a separation.
If you have a Will that leaves the whole of your estate to your former de facto and you fail to update it, the Will remains valid on your death.
This means your former de facto could end up with a part of your estate.
So, if you need to make a Will, or have been left out, or think you may not have been inadequately provided for in a Will please contact our Office at (02) 8824 4736 or 0411 460 034 and we will be able to assist in providing certainty and peace of mind for you, your loved ones, and those you wish to gift a benefit through your Estate.
Disclaimer
The content of the McDonald Law website is provided for information purposes only. The contents of this website do not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters. Should you have a specific matter that you need legal advice for, or you have any questions about our disclaimer please contact our office on (02) 8824 4736 or 0411 460 034.