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Home | Blog | My ex-husband / ex-wife died. Can I make a claim on their estate?

When trying to work out whether you’re entitled to make a claim on a deceased’s person’s estate, you first have to flip to section 6 of the Inheritance (Family Provision) Act 1972 (“the Act”).

Who can claim?

The Act specifies who is eligible to make a claim on an estate. Second on that list is a person who has been divorced from the deceased person.

You would need to prove that, for some reason or circumstance, your ex spouse had a duty to provide for you financially.

This surprises a lot of people. When taking instructions to prepare someone’s will I always ask them if they have been married previously, and if yes, whether they had a property settlement with their ex.

I ask about property settlements because they are one factor (and a major factor) that the Court will consider in determining the success of a person’s inheritance claim on a former spouse’s estate.

However, the fact that a property settlement has occurred does not prevent you from making a claim.

Just because you might be eligible to make a claim on their estate, does not mean you will be successful. It comes down to showing that you were left without adequate provision by your ex for your proper maintenance, education or advancement in life.

So what could increase (but in no way guarantee) your chances of success?

  1. Your ex spouse died before property matters were resolved;
  2. You were receiving maintenance from your ex spouse at the date of their death;
  3. You were dependent on your ex spouse at the date of their death;
  4. The property settlement resulted in you receiving a very small sum because of the greater needs of your ex spouse during their lifetime, which is now no longer relevant;
  5. The property settlement did not make adequate provision for your proper maintenance and support;
  6. You continued a relationship with your ex spouse despite the divorce;
  7. Your ex spouse was responsible in relation to the grounds for divorce.

A problem that you’re faced with, if there has been an order of the Family Court of Australia in respect of property, is that the legislation that deals with property settlements is aimed at ending all future financial relations between you and your ex.

You would need to prove that, for some reason or circumstance, your ex spouse had a duty to provide for you financially.

If you have been left out of a will of an ex spouse or believe you haven’t adequately provided for, you should call one of our wills and estate lawyers as soon as possible to discuss.

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