An unfortunate story with an even more unfortunate outcome was
recently reported in the media, in which a 30-year-old man was
married, but he and his wife separated. The couple had finalised a
property settlement, but before signing the Divorce Application
provided to him by his wife, the man died. The man did not have a
will and, as a result, the Intestacy Rules applied, which meant
that his estate would be left to his wife as she was still
classified as his spouse (notwithstanding that they had separated,
finalised a property settlement and both repartnered). Sadly for
the man's new partner, they had lived with each other just shy
of the two years required to be considered a de facto couple. The
result now is that the deceased man's estranged wife is
entitled to 100% of his estate.
In this Alert, Estate Planning & Administration Special
Counsel Greg Cox and Family Law Associate Helen Davison discuss the
importance for separating couples of having up-to-date wills.
Things would have been different if the man had:
Made a will following his separation from his wife which left
his estate to people of his own choosing; or
Signed the Divorce Application.
While divorce has the effect of revoking a gift made in a
person's will in favour of their former spouse, or preventing
the former spouse from taking under the Intestacy Rules, separation
has no such effect. Further, the requirement for spouses to be
separated for 12 months before they are able to apply for a divorce
means that people who do not make or update their will prior to
their divorce are at risk of their estranged spouse receiving part
or all of their estate if they die. This is despite the fact that
the former spouse may have already received significant property in
a property settlement.
This is a timely reminder to those who are separated but not
divorced to make or update their wills and otherwise review their
overall estate plan, including particularly dealing with jointly
owned assets and making or updating nominations for the payment of
superannuation death benefits. Further, if you have entered into a
financial agreement before or during marriage, it is also important
to review your current will to ensure it contemplates and is
consistent with the provision made for your spouse under your
No doubt, the 30 year old man referred to above did not think
that he was going to die, and did not think that making a will, or
signing the Divorce Application, was important to him at the time.
Unfortunately, he and his family were not prepared for the worst
However low on the priority list it may seem at the time of a
separation, our clients should be aware of the need to update their
will, as it is something we will discuss at our first meeting.
HopgoodGanim strongly recommends making the time to create and/or
review your estate plan, so as to cover the worst case
There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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