Dying without a will when you are separated

Life can get very complicated when you separate from your spouse. It can become even more complex if you happen to die before you manage to finalise your divorce and you haven’t got a will.

When a person dies without a will, this is called dying ‘intestate’. In NSW, the Succession Act 2006 sets out the order of people who are entitled to share in an estate in this situation.

Section 112 of the Succession Act 2006 says that if a person dies leaving a spouse and children, and the children are all children of the relationship between the deceased and the spouse, then the spouse is entitled to receive the whole of the estate.

The Succession Act 2006 also defines the term ‘spouse’ for the purposes of intestacy. Section 104 of the Succession Act 2006 states:

‘A spouse of an intestate is a person:

(a)     who was married to the intestate immediately before the intestate’s death, or

(b)     who was a party to a domestic partnership with the intestate immediately before the intestate’s death.’

This means that in order to be considered a spouse at the time of an intestate’s death, you must have been married to the intestate at the time of their death. If the marriage has come to an end before the intestate’s death, the person will not be regarded as a spouse. A valid marriage will come to an end where an order for divorce is made and takes effect pursuant to section 55 of the Family Law Act 1975 (Cth).

So, what happens if you have separated from your spouse shortly before you die and you don’t have a will?

Well, the short answer is that unless you have an order for divorce at the time of your death, then your spouse is entitled to receive a share of your estate. If you have children and your children are children of your relationship with your spouse, then your spouse is entitled to receive all of your estate.

If you have separated from your spouse and you don’t want your spouse to receive any part of your estate if you die before your divorce is finalised, then you need to make a will or amend your existing will.