The period between separation and divorce is a perilous time for those with Wills. This is because generally marriage separation has no direct impact on a Will – it remains valid, including all the provisions in the Will in favour of an estranged spouse.
Death before filing an Application for Property Settlement
An application for a property settlement can only be granted if both parties to the marriage are still living when the application is filed. If no application has been filed, the deceased spouse’s Will usually governs the distribution of that spouse’s property after death.
Death after filing an application for property settlement
If an application for a property settlement has been filed before a spouse dies, the Court has the power to make property settlement Orders notwithstanding the death. The Court has power if it is satisfied the following:
- The Court would have made a property settlement Order if the deceased spouse had not died.
- It is appropriate to make a property settlement Order.
In the event of separation, it is essential for each party to review his or her Will. Provisions in a Will that leave property to a spouse or de facto partner should be modified to reflect the party’s current wishes. If the spouse or de facto partner has been named as the executor of the party’s estate, a new executor should be nominated. Seek legal advice to change your Wills as soon as a separation occurs to avoid unforeseen outcomes.