If I am separated from my husband or wife, what happens if I die?

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Introduction

There are 3 situations which arise frequently in relation to people who have died in relationships:

  1. the spouses are separated but are not yet formally divorced;
  2. the deceased person has entered into a de facto relationship with a new partner before divorcing their former spouse; and
  3. the deceased person was involved in a relationship which does not qualify as a de facto relationship.

Will validly executed

Under section 14 of the Wills Act 1970, a Will is revoked when a deceased person’s marriage ends unless there is a contrary intention in the Will. The end of a marriage is when a divorce takes effect under the Family Law Act 1975 (Cth). In this situation, the separation does not affect the deceased person’s Will or the distribution of assets under the Will.

No valid Will

Under section 15 of the Administration Act 1903, a de facto partner will gain rights to the assets of the deceased person’s estate.

Unlike a legal marriage, there is no formality with respect to the creation and the cessation of a de facto relationship and a Court would need to interpret the facts of a case to determine if there was a marriage-like relationship. There is also the possibility under the law that there is a de facto relationship at the time of a marriage and there can also be circumstances where there are more than one de facto relationships. The onus of proof that there is a de facto relationship rests with the person asserting that they were in a de facto relationship.

Whether a person is a de facto partner may be a complex question and a Court may be required to make a declaration. Each case is different and there may be complexity arising from the relationship which may suggest that there was a de facto relationship. The person may be no more than a girlfriend or a boyfriend at the time of the person's death.

Superannuation

The Trustee of the superannuation fund will be required to exercise their discretion in relation to the payment of a death benefit. This may depend upon whether there was a de facto relationship or a relationship of interdependence at the date of death.

A Trustee of a superannuation fund will consider submissions made by the parties and any decision of the Trustee can be appealed.

Inadequate provision made for a spouse or de facto partner

In WA, a spouse or de facto spouse may make an inheritance claim under the Family Provision Act 1972 if they wish to challenge the validity of the deceased’s Will (or codicil), or more generally to obtain a greater inheritance under the deceased’s Will. Any Family Court proceedings and financial settlements will be relevant to determining whether inadequate provision has been made.

Even if the deceased died without a valid Will, a spouse or de facto partner may challenge the distribution of the deceased’s estate made under the Administration Act 1903.

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