Married and Separated, but not Divorced

Married and Separated, but not Divorced.

What happens to your Estate if you die before you are Divorced?  

If you are married and separated but not yet divorced, it is important to consider your estate planning. Until you are formally divorced, you are regarded by the law as legally married. Marriage, even if you are separated, has legal consequences. 

Accordingly, upon separation, you may need to adjust your Will, Enduring Power of Attorney document and how you wish your Superannuation entitlements to pass.

Your Will

If you are married and separated, but not yet divorced:

• If you die without a Will, then intestacy legislation will apply, and your ‘ex’ husband/wife will be automatically entitled to most of your assets/estate. This applies even if you are separated. This will remain the case, until such time as you are divorced or you prepare a Will.

• If you die with a Will, but are not yet divorced, even if you have completed a property settlement, as you are still legally married, your ‘ex’ will be entitled to contest your Will. Also, the Court could order your estate to pay them more.
• It is important to have an up-to-date Will in place that reflects your current wishes. This Will can be made in contemplation of your divorce.

A note about Trusts. If you are married and then separated, your ‘ex’ could still have legal access to family trusts (during your lifetime and after death). This may be particularly likely if you have an informal property settlement (without the involvement of lawyers) and so trust documents have not been amended.

Enduring Power of Attorney

• If you are married and then separated, but not yet divorced, your ‘ex’ could still legally have a say in your financial and medical decisions while you are alive and in the event you become mentally incapacitated. This will likely be the case if you have never made an Enduring Power of Attorney document or if you have one but haven’t updated it since your separation.

Superannuation

If you are married and then separated your ‘ex’ could have access to your superannuation entitlements after death.

Super is not an estate asset. On your death, it passes to the nominated beneficiary recognised by the super fund, or it passes to the person the super fund deems appropriate.

Super does not pass to your estate and then onto your beneficiaries unless your Estate/Legal Personal Representative (as set out in your Will) is nominated as the beneficiary with your super fund.

Accordingly, it is important to ensure you have an up-to-date Binding Death Benefit Nomination form lodged with your super fund.

If you don’t have an up-to-date Binding Death Benefit Nomination form lodged with your super fund, and you are separated but die before you are divorced, as you are still legally married to your ‘ex’, the super fund may regard your ‘ex’ as a dependant and could give your superannuation death benefit to them (along with any life insurance attached to the super policy).

Summary

If you are married and separated but not yet divorced, seek legal advice from an experienced Wills and Estates Planning lawyer, to ensure:

3. You have an up-to-date Will in place that reflects your current wishes. (This Will can be made in contemplation of your divorce.)
4. You have an up-to-date Enduring Power of Attorney document in place. (This can be made in contemplation of divorce.)
5. You have an up-to-date Superannuation Binding Death Benefit Nomination Form lodged with your super fund.

An experienced lawyer can advise and prepare all appropriate documents. They can also advise with respect to appropriate changes in family Company and Trust documents.