Our firm has been involved in several sad cases where a husband or wife has passed away before their Family Law property matters have been finalised. The options available if this occurs depend upon whether or not Family Law Court proceedings have already been commenced between the parties prior to the passing. If the proceedings were commenced, the Court case can be continued by the Executor of the deceased Estate – although the outcome will of course be vastly different than would have been the case had the party still have been alive.
If Court proceedings have not been commenced, it is not possible for the surviving party, or for the Estate of the deceased party, to commence those proceedings after death. In such a circumstance the deceased spouse will have lost any rights that they may have had under the Family Law Act. This could have disastrous consequences. For example, if the deceased party owned their home or other real estate with the surviving spouse as joint tenants, then the surviving spouse will automatically be entitled to receive the whole of that real estate. The deceased may have had an old Will, not updated after separation, which left all of their assets to their estranged spouse. Again, in these circumstances the surviving spouse would be entitled to receive the deceased’s assets under the Will.
In order to avoid these and other unwanted consequences there are some steps that a separated spouse can put in place including:
- Avoiding delay in attending to a Family Law property settlement.
- Having some simple documentation prepared and registered to change the way in which the ownership of real estate is held from that of joint tenants to tenants in common. This does not need the signature of the estranged spouse and will prevent them from automatically receiving the whole of the real estate if the other party dies before a property settlement is reached.
- Preparing a new Will appointing someone other than your estranged spouse as the Executor and beneficiary.
- If you do not want your estranged spouse to be able to make decisions about your care and treatment, including life support decisions, in the event that you lose the capacity to make those decisions for yourself due to a serious accident or illness, you can avoid this by having an Appointment of Enduring Guardian document prepared in which you nominate another adult or adults to have the authority to make those decisions for you.
- Having a Power of Attorney prepared appointing someone other than your estranged spouse for the purpose of managing your financial affairs in circumstances where you have lost the capacity to attend to them on your own behalf.
- If you already have an Appointment of Enduring Guardian and/or Power of Attorney in place that appoints your estranged spouse, you should take steps to have each of those documents revoked following the separation.
Caldwell Martin Cox Family Lawyers have also been involved in a case where a separated spouse was diagnosed with cancer after separation – and in fact after property settlement Orders had been finalised. Fortunately the cancer was detected early and successfully treated BUT our client held an insurance policy that paid out a significant sum if he suffered certain specified illnesses or events – such as a heart attack or cancer. The insurance payout was in an amount of $700,000. A problem arose because the beneficiaries on this policy were still our client and his ex-wife and the payout was made to them jointly. We were able to negotiate a satisfactory outcome for our client but it serves as a good illustration that these unexpected consequences can arise.
If you have Life Insurance, Critical Illness Insurance or similar, and/or if you have superannuation entitlements you should consider:
- Removing and replacing your estranged spouse as the Nominated Beneficiary on those policies if you separate.
- Ensuring that, as part of any property settlement, the ownership of the Insurance policies is dealt with and transferred to one party.
Family Law is a complicated and emotional area. Knowledge is empowering. Our Family Law team can give you that knowledge and help create solutions and outcomes. Do not hesitate to contact us for help.