18 Dec 2024When it comes to separating in New South Wales, the law distinguishes between married couples and de facto relationships. This can have significant implications for those involved in a de facto relationship if their relationship ends and there are concerns over protecting the estate from future claims from the other party.
Navigating separation and family law can be challenging, especially when it comes to ensuring that all financial and property matters are settled comprehensively. In the wake of a relationship breakdown, individuals often want assurance that their ex-partner’s future claims on their will or estate are nullified.
Can ex-spouses make claims on a will or estate after a divorce?
For married couples in NSW, the primary legislation governing the dissolution of marriages and de facto relationships and the resolution of related disputes is the Family Law Act 1975 (Cth).
However, it is the NSW Succession Act 2006 that ensures a former spouse does not have access to your estate after a divorce. This Act specifies that any provisions in the will pertaining to the former spouse become invalid upon divorce.
Typically, divorcing couples also seek Family Court orders to formalise the terms of separation, including property division, child custody arrangements and financial support. These are legally binding documents designed to provide a clear and enforceable resolution to disputes between former spouses.
Are de facto separated couples also protected by Family Court orders?
Unfortunately, things are slightly more complicated for separating couples who lived together but were not married. Unlike married couples, where a divorce automatically cancels out any gifts to the ex-spouse in a will, separating from a de facto partner doesn’t automatically change the will.
This is because there is nothing in the Family Law Act that invalidates a will when a de facto relationship ends. Therefore, Family Court orders do not automatically revoke the other person’s will.
Technically, this means that if you don’t update your will after the breakup, or if you lose the ability to make a new will – such as by becoming incapacitated – your ex could still get what you left for them in your old will.
How do I protect my estate from my former partner after we separate?
First and foremost, the most important thing is to ensure you update your will upon separation. Having a valid and updated will is critical to protecting your estate.
However, an extra layer of protection may be added by having the ex-de facto sign a deed to disclaim the other’s person inheritance after the Family Court orders are made.
This disclaimer effectively ensures that the other party cannot claim any inheritance in any will of their former partner in which they have been left a gift, if the former partner has not updated their will, or if they have lost capacity to make a new will.
Further, parties could sign a deed of family arrangement which attempts to release one another from bringing a family provision claim.
What is a deed of family arrangement?
A deed of family arrangement is a legal document that can be used to formalise an agreement between parties regarding the distribution of assets and liabilities.
This deed allows beneficiaries to agree to a different asset distribution to what is outlined in the will. This can provide further clarity and an additional layer of security for the parties, by explicitly releasing any future claims either party may have against the other.
In the event of a separation, the deed of family arrangement can have both parties agree to give up any inheritance from each other.
It is important to note that a deed of family arrangement that encloses a release from any family provision claim is only valid if it is approved by the court.
Unfortunately, a lot of people don’t worry about getting the deed approved. This means that if it is ever challenged in the future, there is a risk that it may not be approved and the court may then make orders for a different outcome.
Can a former de facto make a claim on an estate if the relationship ended long ago?
If your de facto relationship ended a long time before you passed away, your ex might not be eligible to claim anything from your will.
This is because if the de facto relationship ended years before the death of the person, then the person wishing to make the claim would not be eligible to bring a family provision claim.
A person who is eligible person to bring a family provision claim under the Succession Act is:
(a) a person who was the spouse of the deceased person at the time of the deceased person’s death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
(c) a child of the deceased person,
(d) a former spouse of the deceased person,
(e) a person –
who was, at any particular time, wholly or partly dependent on the deceased person, and
who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
A former de facto partner could be eligible to bring a family provision claim if they were wholly or partly dependent on the deceased person, and were a member of the household of which the deceased person was a member.
Therefore, if you are a separating de facto, you might consider it wise also to include a separate disclaimer and release to each other’s deceased estate in your negotiations. But take caution – the release may not be binding if the court considers it should make an order from the deceased’s estate.
