Scenario: Mrs Smith married Mr Smith who had two children from a former marriage. Mrs Smith had no natural children of her own. Mr Smith predeceased Mrs Smith with Mrs Smith dying several years later. Are the children of Mr Smith entitled to make a claim against the estate of the Mrs Smith?

 

The children of Mr Smith became the legal step-children of Mrs Smith at the time of the marriage. A step-child may be entitled to make a claim against the estate of their step-mother or father pursuant to Section 6(g) of the Inheritance (Family Provision) Act 1972 (SA), if they are “a child of a spouse or domestic partner of the deceased person.”

 

We must then ask the question; because Mr Smith had predeceased Mrs Smith, could Mr Smith’s children still be classified as children of a spouse or domestic partner of Mrs Smith? The answer is no. A marriage or domestic partnership may be terminated in two ways, firstly through the divorce or the formal breakdown of the relationship and secondly, through the death of one of the parties. A requirement of being a spouse or domestic partner under the Inheritance (Family Provision) Act 1972 (SA) means you need to be legally married or together at the date of the death of the deceased.

 

As a result of this definition we can determine that the children of Mr Smith would not be eligible to make a claim under this provision because, although Mrs Smith and the biological father were married, they were not married at the date of Mrs Smith’s death, because at this time she was in fact a widow.

 

Therefore, it is prudent to seek advice from a solicitor in the event of the death of a family member. A solicitor is best equipped to provide you with appropriate advice related to the effects a death may have on your estate and how to best to structure your affairs in order to ensure your step-children are included in the division of your estate, or alternatively, to minimise them from making a claim against your estate. For advice on Wills and Estate matter contact myself, Maddalena Romano, Greg Welden, Jason Coluccio or the team at Welden & Coluccio Lawyers.

Download our brochure titled ‘The Will’ here.