Under Australian law, a separated but not divorced person is still considered the legal spouse of the deceased.
Impact on Wills
A separation does NOT automatically revoke a Will created during the marriage. If the Will leaves assets to the estranged spouse, those provisions may still take effect unless formally changed.
Intestacy
If the deceased didn’t have a Will, or it’s invalid, the estranged spouse would still likely have a strong claim on the estate under the rules of intestacy (how assets are divided when there’s no Will).
Superannuation
Superannuation (retirement funds) often allow for nomination of beneficiaries. A separation doesn’t automatically revoke these nominations.
Potential Scenarios
- Will Favoring the Spouse: If the deceased’s Will benefits the estranged spouse, those provisions will likely be followed. The surviving spouse would inherit as designated, potentially against the wishes of other family members.
- No Valid Will: If there’s no Will, state laws of intestacy determine inheritance. The surviving spouse usually receives a significant portion of the estate, especially if there are children.
- Property Settlement: A formal property settlement made during the separation may impact what the surviving spouse receives, but it depends on the specifics of any agreements in place.
Is a Separated Spouse Entitled to Contest a Will in Australia?
Yes, a separated spouse is generally entitled to contest a Will in Australia, but their success depends on several factors. Here’s why:
Under most state laws (such as the Succession Act 2006 in NSW), a separated spouse falls under the category of an “eligible person” who can bring a family provision claim against an estate. This means they have standing to contest a Will.
Courts also consider various factors when a separated spouse challenges a Will, including:
- The length and nature of the separation
- The financial needs and dependency of the surviving spouse
- Whether there were any financial obligations (e.g. maintenance orders) between the spouses
- The size and composition of the deceased’s estate
- The claims of other beneficiaries named in the Will
However, being an eligible person doesn’t guarantee a successful contest. The court must be satisfied that the deceased’s Will did not make adequate provision for the separated spouse’s proper maintenance, education, or advancement in life.
How Do Australian State Laws Affect the Rights of a Separated Surviving Spouse?
Despite variations, some general principles apply across Australia:
- Separated but Not Divorced: A separation does not automatically remove a spouse’s inheritance rights.
- Wills Prevail: A Will, if valid, takes precedence over intestacy laws. However, a separated spouse may still be able to contest an unfair Will.
- Financial Need: A separated spouse’s financial need and dependence on the deceased often play a crucial role in determining their inheritance rights.
Examples of State Variations
Here are a couple of examples to illustrate the state-specific differences:
- New South Wales (NSW): The Succession Act 2006 (NSW) sets out the rules of intestacy and family provision claims. A separated spouse in NSW may have a strong claim, especially if financially dependent on the deceased.
- Victoria: Victoria’s Administration and Probate Act 2003 outlines similar principles. The length of separation and the existence of a pre-nuptial agreement might also be considered by Victorian courts.
- Queensland (Qld): Under QLD’s intestacy rules, the surviving spouse’s share depends on factors such as whether there are children, and if so, the value of the deceased’s estate.
Does the New Family of the Dead Spouse Have the Right to Inherit?
Generally, the new family of the deceased spouse (like a new partner and their children) does not automatically inherit if the deceased had a previous spouse who is still alive but separated. Here’s why:
Legal Spouse vs. Separated Spouse: In most jurisdictions, separation does not dissolve a marriage. Until a divorce is finalised, the separated spouse is still considered the legal spouse and may have inheritance rights.
Here’s a summary table to illustrate the concept:
| Scenario | Inheritance Rights |
| Valid Will Leaves Assets to New Family | New family inherits according to the Will |
| Separated Spouse Contests Will (and Wins) | New family might inherit only if the Will is successfully challenged |
| Intestacy (No Will) | New family inherits only after claims of surviving spouse are settled (and depending on state law) |
Client Concerns: Spousal Maintenance & Inheritance After Husband’s Death
Our client had been separated from her husband for 10 years in Queensland. They had two children together, and she received spousal maintenance payments as part of their separation agreement.
However, her husband suddenly passed away without a Will (intestate). The client was unsure if the payments would continue and whether she and her children had any inheritance rights.
Walker Pender’s Assistance:
- Spousal Maintenance Explanation: We explained that these payments generally terminate upon the death of the paying spouse. Her husband’s estate might owe her any arrears (past-due spousal maintenance payments), but future payments would cease.
- Inheritance Rights: We assured her that as the legal spouse, she held a strong claim on her husband’s estate under Queensland’s intestacy laws. Her children, as the deceased’s biological children, also have primary inheritance rights.
- Next Steps: We advised her to gather documentation (marriage certificate, separation agreement, children’s birth certificates) and recommended applying for a Grant of Letters of Administration to manage the deceased’s estate.
Are you separated and worried about your rights if your spouse dies?
Understanding inheritance laws as a separated spouse is crucial for protecting yourself and your loved ones. Don’t navigate this alone! The experienced estate planning and family lawyers at Walker Pender Group can clarify your legal position, secure your entitlements, and help you plan for the future.
