Death of a Party During Separation

They had a friend who had recently separated from their partner when they suddenly and unexpectedly passed away before they were able to reach an agreement and finalise their property settlement. The family was unsure about what to do or where to begin.

The death of a party during a separation will no doubt complicate things and there are many, many variables which will determine the best and most correct way to finalise things and move forward.

If the matter is not before the Court and one party passes away, the law of succession will come into effect. This will occur despite the parties having been separated and in negotiations regarding property arrangements. The surviving spouse or de-facto partner will not be able to commence proceedings under the Family Law Act. Further, if any property is jointly owned, this will automatically pass to the surviving spouse or partner, as will potentially any superannuation or life insurance benefits.

If there are already proceedings before the Family Court and a party passes away, the proceedings may be continued between the surviving spouse or partner and the estate of the deceased. In determining how to continue the matter and the way in which property is divided is determined by the Family Law Act, the Court has the discretion to make orders if: –

  • It would have made an order if the deceased party had not died; and
  • It is still appropriate to make an order with respect to property.

In this regard, it is so important to obtain legal advice to ensure that you and your family are protected due to the separation.

We always stress the importance of having a Will, however, it is equally as important to ensure that your current Will is reflective of your current circumstances including a separation from a spouse or partner. It may not be something that people think about during what can be a very stressful time, but it is a very important issue nevertheless.

If you require legal advice or representation in a family law matter, having a Will drafted or dealings with an deceased Estate, please contact us on (02) 4655 4224 to speak to an experienced solicitor.

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