“Over my dead body”- The entitlements of a former spouse after you are gone

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First and foremost, a valid will is the most important instrument in distributing your assets and looking after the people you care about after you are gone.


In New South Wales, if you die intestate (without a valid will), and you are not yet divorced, then your spouse is entitled to the whole of your estate. This entitlement is above the entitlement of children you may share with your spouse. The law is based on the notion that your spouse will leave their estate to their children once they die but this can be complicated by a number of factors including if your spouse remarries and has children with their new spouse.

If you have children from a previous relationship, your spouse will be entitled to a statutory legacy of approximately $500,000 and half of what is left over. The children from your previous relationship, and from your relationship with your spouse, will be entitled to the other half in equal shares.

A Will that Benefits your Spouse

It is common for parties to a marriage or de facto relationship to have wills that benefit each other. If that is the case, the gifts you leave your former partner will be valid under that will, even if you are separated but not yet divorced when you die.

Section 13 of the Succession Act revokes gifts made to your former spouse under your will. The gifts will then form part of your residuary estate and distributed per the terms of your will. If you wish for the gifts to your former spouse to be effective then their must be a clear intention as such in your will. As such, if you have a will that benefits your former spouse then your first priority should be to speak to a lawyer to ensure your will aligns with your intentions.

Family Provision and Deed of Release

In New South Wales, Section 57 of the Succession Act outlines persons eligible to make a family provision claim in respect of the estate of a deceased person. A former spouse is an eligible person. As is a dependent member of the household at any point of the deceased’s life; this may include children of your former partner who lived in your home during your relationship. This means that even if they are not included in your will, they may still be entitled to a portion of your estate.

Parties may be released from their family provision obligations under section 95 of the Succession Act. This can be done through a Deed of Release. By signing a Deed of Release, the person waives their right to a share of the estate and any other rights or entitlements they may have had. To be binding, a Deed of Release must be approved by the Supreme Court of NSW. In approving such a release the court will take into account the financial position of both parties and if the release is fair and reasonable. It is also necessary for both parties to obtain independent legal advice to ensure they are informed of the effect of the release. It is now quite common for parties resolving their family law property settlements, to execute mutual Deeds of Release, and obtain the Court’s approval of the release, as part of their suite of settlement documents.

The lawyers in the Mills Oakley Family Law team are equipped to help you understand your succession plan and assist you in updating or executing a valid will or Deed of Release. This helps to ensure those you care about are taken care of after you are gone.

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