I have been married for several years but have recently separated from my spouse. We have finalised a property settlement, but are yet to get around to being officially divorced.. I don’t have a Will, does this mean my former spouse will still have access to my estate when I die?

The simple answer is yes. Whilst you may be separated, you are still legally married and have a legal ‘spouse’ in the eyes of the law. Under the Administration and Probate Act 1919 (SA) if a person dies without a Will, having a legal spouse and no children, then the partner would be entitled to the whole of the estate.  Alternatively if there were children, and the estate was worth over $100,000.00 then the legal spouse would receive the first $100,000.00 and anything over $100,000.00 will be divided equally between the legal spouse and the children of the deceased.

In a recent case, the Supreme Court of South Australia heard the case of a young couple who had been married and undergone a messy break-up. A property settlement was entered into and they began to move in separate directions. The wife had served divorce papers on the husband, but he hadn’t yet signed them.   Legally speaking, the divorce was never finalised. Approximately 15 months later the husband died in a tragic accident. The husband left no Will which resulted in the former spouse being entitled to the estate in its entirety.  This included a house and a significant superannuation benefit. The deceased’s grieving family were left with nothing.

Whilst the family of the deceased might, in certain circumstances, be entitled to make a claim for an interest in the estate under the Inheritance (Family Provision) Act 1972 (SA), the exercise would be costly and possibly detrimental to the family.  This could easily have been avoided, either by finalising the divorce or by having a Will in place.

In the matter described above, if the deceased had been divorced or had left a Will, then his estranged wife would have no claim or entitlement to the estate.

It is prudent to seek advice from a solicitor in the event of a relationship break down. A solicitor is best equipped to provide you with appropriate advice related to the effects and long term implications a previous relationship may have on your estate and how to best to structure your affairs in order to minimise any ex-partner from making a claim to your estate. For advice on Wills and Estate matter contact the dedicated and experienced team at Welden & Coluccio Lawyers.

It is a sad fact that, with the Christmas season over, many couples move into the New Year with a plan to go their separate ways.  Certainly, once the children head back to school it is not unusual for lawyers to be inundated with queries from people who need legal support during this time.   Admittedly, supporting families through this experience is one of the saddest and confronting aspects of my job.  While all legal matters have the potential to be emotionally draining, this is exacerbated in family law matters, particularly where there  are children involved.

While there are many things to consider during a separation, there are a few key financial considerations which have the potential to slip through the cracks, but which need to be addressed, if individuals wish to move forward positively in their new life as a single.

Some of the key documents, often ignored or neglected by individuals in this situation include:
Wills & Other Estate Planning Documents: People do not realise that when you separate from your partner, this does not revoke any nomination as executor or beneficiary in your Will. Divorce does not protect you from your former husband being eligible from receiving some of your assets on your death.

It is critical that upon separation, you make a new Will with a solicitor.

Superannuation Funds: Divorce or separation will not revoke a binding death nomination made in your superannuation. It is important to be aware that if a new binding nomination is not made this could mean your ex-partner may receive your superannuation balance should you die prematurely.
Simply nominating your young children as beneficiaries in your superannuation will not necessarily eliminate the possibility of your ex-partner receiving this money should you die prematurely. As the legal guardian of your children your ex-partner will have complete control over the balance which your children will receive.

Insurance Policies: It is important to know that separation or divorce does not change the beneficiaries who you have listed as beneficiaries on your insurance policies.
You need to ensure that the people/person who you nominate as the beneficiaries will be taking direct benefit of your nomination.

At Welden & Coluccio Lawyers we will assist you through this emotional time, helping you to understand all your financial and estate planning options.