Julia Weltner

It is becoming more prevalent for separated spouses to never formally divorce, especially where neither intend to re-partner. This can cause difficulties where one partner dies before a divorce is effected and they have not made or updated their Will.

Although you might be formally separated, and may have even successfully effected a property settlement, your spouse may still be entitled to most (or all) of your estate after your death.

What if I do not have a Will?

Where a person dies with no valid Will, their estate will be distributed in accordance Part 3A of the Administration and Probate Act 1919 (SA) known as ‘the statutory order’. This order provides (for people who die with a legal spouse):-

  1. Where the deceased had no children, their entire estate will pass to their spouse; or
  2. Where the deceased had children, their estate will be distributed as follows:-

a. The first $100,000 to the spouse;

b. The personal belongings to the spouse;

c. Half of the balance of the estate then remaining to the spouse; and

d. The remaining balance of the estate equally between the surviving children of the deceased.

Even where parties have been separated for years and have financial settlement orders in place, this order still stands if the parties were legally married at date of death.

What if I have a Will, do I need to change it?

If you already have a Will in place, that will remains valid despite separation. This means that if your current Will appoints your former spouse as an executor or beneficiary, you should strongly consider updating same.

If you formally divorce and your Will names your former spouse as an executor or beneficiary, those particular clauses will be revoked, but the remainder will remain valid. You may still wish to review your Will in these circumstances.

What does this mean for my children/ other loved ones?

Dying without a valid Will while still legally married can often result in your children receiving very little (or no) inheritance. One option for your children is to have a Deed of Family Arrangement drawn up to agree such other distribution of the estate, however this requires the agreement from your former spouse to relinquish their right to your estate. If your former spouse will not sign such Deed, the only alternative option for your children to secure a greater inheritance will be to make an claim under the Inheritance (Family Provision) Act 1972 (SA), which can be extremely costly and emotionally draining.

The best way to protect your children or other loved ones, and ensure that your estate is distributed in accordance with your wishes, is to update your estate planning documents. We recommend updating your Will, Power of Attorney, Advanced Care Directive and Binding Death Benefit Nomination of your Superannuation if you are going through a separation, especially if you do not intend on divorcing.

If you have any further questions or you would like to make an appointment, give us a call today on 8357 7611.