Many couples separate permanently but remain married and do not obtain a divorce. The legal issues if one of them dies without a Will can become very complex. Wills and Estates lawyer Amanda Smith discusses this often overlooked subject.
We previously dealt with the impact of marriage upon existing Wills and how it revokes them unless the Will is made in contemplation of marriage. However, the situation in reverse is something that happens quite often. There are many couples who separate and for various reasons do not obtain a divorce nor do they file property settlement orders with the Family Court. This does not present too many problems while both of them are alive but if one of them dies unexpectedly and does not have a Will in place, the laws of intestacy apply to that person’s estate. Although the intestacy laws differ slightly from state to state, a surviving married spouse will normally inherit the lion’s share of the estate of their deceased husband or wife. This will be the case notwithstanding the fact that the couple may have been separated for many years and have no intention of leaving each other their assets!
Not only does the surviving spouse inherit most of the estate (they inherit all of the estate if there are no children involved), they are also deemed to be the person with the highest priority to apply for Letters of Administration in relation to the estate. This means that they can apply to the court to be appointed to administer the estate, once again, notwithstanding the fact that they may well have been separated from the deceased for a substantial period of time and have had very little to do with his or her lives for many years. Although the succession laws in the states provide rights to surviving de facto spouses and children to bring claims against the estate of the deceased person, these proceedings can be expensive and quite stressful to the family involved.
The impact in Queensland can be particularly harsh as under the intestacy laws in Queensland a de facto spouse must live continuously with the deceased for a minimum period of 2 years prior to their death in order to qualify as a de facto spouse (S.5AA Succession Act QLD). If they are just short of this 2 year period, they cannot bring a claim against the estate and the surviving spouse of the deceased will inherit the bulk of the assets.
The easiest way to ensure that your affairs do not end up being hijacked by the laws of intestacy is to make sure that you have an up to date Will which makes proper provision for your assets to go to the family members or beneficiaries that you wish them to. This is particularly so if you maintain the marriage and do not obtain a divorce. It is a relatively simple thing to do to rectify the situation but we find that there are many of our clients who find themselves in this position. If you are separated at any time, you should immediately review your Will and Enduring Power of Attorney.
If you require advice in relation to having your Will done for you, please contact our please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers.
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