Some married couples make the decision to separate on a permanent basis, but do not get divorced. At the time, the couple may come to an amicable, but informal agreement regarding the division of their assets.

However, as illustrated in the below case study, informal arrangements can fail to address significant legal consequences for a deceased estate.

It is important to remember that marriage is a legal status under federal law.

Unexpected complications can be difficult for the surviving family to navigate at a time when they are coping with their own grief and loss.

We explain how complex legal issues can arise in circumstances where a separated couple remains legally married, but one party dies intestate (without a Will).

Case Study – Karen
Karen’s parents separated 15 years ago when she was 16 years of age. For Karen, the division of assets appeared to be simple, Mum kept the family home and Dad moved into the investment property. Karen moved out of her mother’s house when she turned 18. Over the years communication with her mother broke down and they have not spoken in 7 years. Karen’s mother and father have not spoken since the separation. Karen remained in regular contact with her father. Recently, Karen’s father died. Karen is certain her father did not have a Will. As the only child, Karen began sorting through her father’s personal effects after his death. She discovered her parents were not divorced. Furthermore, her father owned real property in his sole name when he died.

Who has the right to administer Karen’s father’s estate?

According to NSW’s succession laws, Karen’s father died intestate (without a valid will). As Karen’s father owned real property (land) in NSW, a grant of Letters of Administration will be required to be obtained from the Supreme Court before the land can be administered (ie. sold or transferred).  The Supreme Court will only issue a grant of Letters of Administration to limited categories of people, including to a person who would be likely to benefit from the whole or a share of the deceased’s estate. Pursuant to Section 63 of the Probate and Administration Act, this would include Karen’s mother.

Who receives an interest in Karen’s father’s estate?

Karen’s father told her he wanted all of his estate to pass to her, and Karen thinks this is what he expected would happen after his death. Unfortunately, although Karen’s mother has been estranged from the deceased for many years, she is still legally considered to be a spouse. As Karen’s mother is considered the surviving spouse, she is entitled to the whole of the estate. Karen receives no share of the estate under the rules of intestacy as she is a child of the surviving spouse. This also means Karen lacks standing to make an application to the Supreme Court to seek to administer her father’s estate. Unless a marriage has been formally dissolved by divorce, the estranged spouse still retains their rights under the Probate and Administration Act and the Succession Act.

How to avoid this issue?

The above highlights an important consequence of remaining married at the time of death.

The issue could have been avoided by Karen’s father formalising a divorce through the Family Law Court, although sometimes people have personal reasons for wishing to remain married.

One of the most effective ways to avoid complications with your estate is to ensure you have a current Will clearly stating your testamentary wishes. If your circumstances change, such as you become separated from your spouse, it is important to review your Will and update your testamentary wishes to reflect your current circumstances.

Seek advice

The Wills and Estates team at Turner Freeman Lawyers can provide professional advice to ensure your Will is drafted in clear and concise language that ensures your last testamentary wishes are carried out.

If you would like assistance preparing or updating your Will, or you would like to discuss any questions you may have regarding estate planning, do not hesitate to contact Turner Freeman Lawyers on 13 43 63 or via our online enquiry form.

Article was co-written with Newcastle solicitor Tenille Rossi.