*The contents in this blog relates to legislation in Queensland.
It is the reality of the current times that sees more and more people separating from their husband or wife due to irreconcilable differences. Of course with separation comes the wearisome and stressful (and often expensive) process of completing a Family Law settlement so that you are cutting your financial ties with your estranged spouse.
Yet it is alarming, the sheer number of people who complete a settlement but then do not follow through with obtaining a divorce.
We get it, the costs of applying for a divorce are rising each year, so it is becoming more and more common for parties to formally separate but not go through with the actual divorce process until is it absolutely necessary for their circumstances (i.e. one of the parties wants to re-marry).
However, what most fail to take into consideration is the impact of what not completing the divorce process could have on your estate, if you were to pass away.
Why is divorce relevant to your estate? It’s simple really. Your spouse is generally the person in number one position to bring a claim against your estate if they can show that they have not been adequately provided for. If you are still married, then your estranged husband or wife is still considered to be your legal spouse.
Leaving a Will
You may think to yourself that it’ll be fine, you’ve created a new Will which leaves nothing to your spouse so your estate is safe … right?
Unfortunately, no. If you have a Will that excludes your spouse, you are potentially leaving the door wide open for your estranged spouse to commence a Family Provision Claim against your estate. This can be a lengthy and costly process which will often result in your estranged spouse receiving a portion of your estate. As a result, all those directions you left in your Will could be entirely ignored in favour of provision being made for your estranged spouse.
Leaving No Will
If you do not have a Will when you pass, then the rules of intestacy will apply to your estate. This means that your estranged spouse is automatically entitled to a portion, if not the entirety (depending on whether you have any children) of your estate. They also are the first person in line to apply for a Grant of Letters of Administration to be the Administrator (similar to an Executor) and in charge of your estate.
Whether or not any person would be able to challenge your estranged spouse receiving a portion/the whole of your estate pursuant to the rules of intestacy will be dependent on whether or not that person would otherwise be entitled to bring a claim against your estate. In circumstances of your siblings or parents trying to protect your estate, the answer is often no.
Life is unpredictable. This in itself is reason to take your estate planning seriously while you are able to.
If you leave it up to chance, then there is a great chance that your wishes will not be followed and your estranged spouse could walk away with a portion of your estate notwithstanding any formal property settlement you may or may not have entered into.
If you need advice about a potential family provision application, or your estate planning generally, please contact our team today on 07 3025 9000 for a confidential, obligation free discussion.
