“Can my ex bring a claim against my estate?”

by Caldwell Martin Cox | 11 10, 2022 | Latest News

“Can my ex bring a claim against my estate?”

This is a question that we often get when preparing Wills for people who have previously separated or divorced from their ex-spouse.

The first thing to remember is that, if you have separated but have not yet been legally divorced, then, whether a Family Law property settlement has been completed or not, any Will you have leaving assets to your ex is still valid. This means that once you separate you need to update your Will if you are not wanting your assets to pass to your ex. If you have separated but are not yet legally divorced and have no Will in place, then the law sees your ex as still being your husband/wife/partner and they may receive a large portion of your estate, if not all of it, under the laws of intestacy.

So, what happens if you are divorced and have created a new Will? Can your ex-spouse still bring a claim against your estate?

The law sets out categories of “eligible” people who have a legal right to bring a claim against your estate when you die. One of these categories is “a former spouse of a deceased person” – so the answer is yes, your ex can bring a claim against your estate. There are of course obstacles that an ex-spouse must overcome in order to succeed in a claim – such as proving that adequate provision for their proper maintenance, education or advancement of life has not been made by your Will. This is more difficult for them to establish if they have already received their share of a family law property settlement, and it is rare for an ex who has already got their share in a property settlement to try for more after you die – although they are permitted to give it a go if they want to.

There are numerous cases that have been dealt with by the Courts where ex-spouses have brought claims against their deceased spouse’s estate. As the circumstances of each case are different it is no surprise that the Courts have found that each case must be determined on its own merits.

Examples of cases where an ex has been successful in their claim against their former partner’s estate include situations where:

• the parties were divorced but no Family Law property settlement had yet occurred through the Family Court.
• The ex-spouse made continuing contributions to the deceased’s welfare following the end of the marriage/relationship in the nature of financial support and/or in the nature of physical care and support.
• the parties had rekindled their relationship, or
• the parties had formalised a property settlement but the deceased has been dishonest and did not disclose significant financial resources during the property settlement process.

Even if an ex-spouse is entitled to make a claim, it does not automatically mean that they will succeed in getting a share. A court will look at a variety of factors – such as whether their own financial circumstances are already comfortable, the size of your estate, the share that they might have already received, and the competing needs of other potential claimants or beneficiaries under the Will.

As everyone’s circumstances are unique you should always obtain proper advice in relation to your particular situation. Knowledge is power and our Estates Team are well equipped to answer your questions.