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When you pass away, regardless of whether you were married or in a de facto relationship, if you have prepared a Will and the Will is valid, then the Will will dictate how and to whom your inheritance will be distributed. If you pass away with a Will, then the intestacy laws will apply and the law will decide how your assets are to be distributed.

It is important to note that the fact that you are no longer in a relationship with your former spouse will not mean that he or she has no claim to part of your estate.

How does separation impact a Will that was created when you were married?

If you drafted a Will when you were married or in a de facto relationship, once you divorce or otherwise split up from your partner, your ex-partner could still potentially be entitled to part of your estate unless an official order has been made by the court in relation to the division of assets.

You should keep in mind that a breakup cannot undermine a Will that was created while you were married or in a de facto relationship. Similarly, splitting up from your partner, until separation is legally effected, will not have any effect on the intestacy laws. This means that your partner, even if you are no longer living together, may be entitled to make claims to your estate if no order from the court has been made. a breakup will not have any significant impact on the intestacy laws in the event that you haven’t drafted a Will.

How does a Binding Financial Agreement help?

If you are married, to prevent the possibility of an ex-partner making claims on your estate once you have separated, but not officially divorced, you should consider entering into a Binding Financial Agreement (“BFA”) with your partner. A BFA clearly sets out what assets and liabilities each of the parties have, and it anticipates separation and provides for settlement arrangements.

The BFA can expressly state that only property and other assets which were acquired jointly during the relationship will be divided in the event that the relationship ends, and that no assets attained by either party prior to the relationship will be included in this pool, and neither party has a claim to the other’s estate.

BFAs can also be used for de facto relationships.

What else can I do?

Once you separate from your partner, to prevent any future claims against your estate and to ensure that your assets go to your children, family members, and any others who you wish to give your assets to, it is recommended that you have your Will amended or redrafted so that your ex-partner is no longer named as a beneficiary in your Will.

LegalVision cannot provide legal assistance with this topic. We recommend you contact your local law society.


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