How can she do that?
Can your estranged spouse claim your estate if you are separated but not divorced when you pass away? Absolutely they can.
The Succession Act doesn’t recognise separation as a basis for your spouse becoming a former spouse. Only a divorce order will prove that.
What does this mean? If you are separated but not divorced, then your separated spouse will have one of the greatest claims to your estate. That is not easy if there is a Divorce Order in place.
In recent times, we have had two such cases. In the first one, the parties had been separated for five years, the surviving person had been in a subsequent de-facto relationship for 3 years, and yet still made a family provision claim upon the estate as a spouse.
In the second case, the parties were separated for two years, living apart but again, because they were not divorced, the surviving spouse made a family provision claim against the estate despite not being left anything in the Will.
If you are separated but not yet divorced, you must do so for estate planning purposes.
Remember, you only need to be separated for 12 months in Australia before you can apply for a divorce.
Stay tuned for our next newsletter to know what happened.