Separation from a partner where there are little to no chances of reconciling involves more than just family law – it has estate planning consequences too.
While you might not feel the need to apply for a divorce for personal reasons (if your relationship is amicable or you don’t plan on getting married again), if you die whilst separated from your spouse, before getting a divorce, there can be consequences for your estate which you may not have expected:
- If you have a will in which your spouse is a beneficiary and you have not made a new one whilst you are separated, your assets may be distributed in a way which you may not intend.
- If you don’t have a will, the laws of intestacy will apply and your spouse may be entitled to some, or all, of your estate. The division of your property according to the formula set by legislation may not be what you want, especially if you’ve entered into a de-facto relationship with a new partner.
- ‘A person who was married to … the deceased person immediately before the death of the deceased person’ can make a family provision application in the Supreme Court of Western Australia for provision out of your estate if he or she believes that they haven’t been adequately provided for by your estate. The likelihood of this happening may increase if you’ve made a will during your separation and you’ve left nothing, or very little, to your spouse.
- If you have made a non-binding death benefit nomination or have not made a nomination at all with your superannuation fund(s), it is up to the trustee of your superannuation fund(s) to decide who to pay your super death benefits to. In the absence of a binding death benefit nomination, the trustee of your superannuation fund can decide to pay your super death benefits to your spouse. Complications can also arise with respect to the proceeds of insurance policies.
So if you are separated and aren’t yet divorced, consider:
- making or updating your will;
- making or reviewing your superannuation death benefit nomination;
- reviewing your life insurance policies and nominations; and
- applying for a divorce if you’d like to minimise your spouse’s ability to make a family provision claim against your estate.
Do you need to make or update a will? Would you like to make an application for divorce? If so, talk to Martin Tuohy (Executive Director) or Clarissa Quek (Lawyer) on (08) 9228 2881
or by emailing martin@equitaslawyers.com or clarissa@equitaslawyers.com.
Disclaimer – The articles provided by Equitas Lawyers are for general information only. While every care has been taken in preparing these articles, they are intended to be a guide only, and no warranty is given as to the accuracy, currency or completeness of the information contained in them. The articles are not intended to be, nor should it be, relied upon as a substitute for legal or other professional advice. Formal legal advice should be sought in particular matters.
