An interesting dynamic I often see when I am taking instructions for a client’s estate planning is that they have separated from their partner but have not divorced.

It appears it is common for two people to separate, undergo a property settlement (to formally divide their assets), but not seek a divorce order. Sometimes, 6 months have passed or perhaps 10 or 15 years have passed since the separation, yet they haven’t sought a divorce order. In some scenarios, the partners have moved on and entered into new de facto relationships, maybe had more children, yet at law, they are still married to their former spouse.

In my experience, many people do not appreciate the significant impact this situation may have on their estate planning and their loved ones if something were to happen to them.

Who is a person’s spouse?

Under the Succession Act 1981 (Qld), a spouse is a person’s husband or wife. The person will remain so until a divorce order is obtained.

What does this mean for your estate planning?

Where there is a Will

If a person is married to their husband or wife, and they have a Will in place naming their husband or wife as the executor and beneficiary, notwithstanding their separation, the Will remains a valid and enforceable Will.

This remains the case irrespective of the couple having separated and completed a property settlement. If a divorce order has not been obtained, at law, the couple continue to be married, and the Will remains enforceable.

It is for this reason that many couples who have separated and find themselves engaging a family lawyer will be advised they should immediately consider reviewing their Will and Enduring Power of Attorney in contemplation of their divorce.

Where there is no Will

If a person is married to their husband or wife, and they do not have a Will, and they pass, their estate will be dealt with under the intestacy laws set out in the Succession Act 1981 (Qld).

At present, the intestacy laws say that:

• if a person passes with a spouse and no children, the spouse will receive the whole estate; and
• if a person passes with a spouse and 2 or more children, then:
  • the spouse will receive the first $150,000 and the household chattels as well as 1/3 of the balance of the estate; and
  • the 2 or more children will share equally in the remaining 2/3 of the balance of the estate.

Again, if the deceased person was separated at the time of death, but not divorced, the spouse will continue to be the spouse and will be entitled to receive their interest in the estate.

The importance of a divorce order

Accordingly, the importance of a divorce order is obvious. To ensure your estate planning remains is able to reflect your current circumstances, a separation from a partner must be finalised with a divorce order.

If no divorce order is sought, your previous spouse will continue to have an interest in your estate planning.

Review of the Succession Act 1981 (Qld)

At the time of writing this blog, a review of the Succession Act 1981 (Qld) is being undertaken by the Department of Justice and Attorney-General. A copy of the Public Policy Paper (the Review Paper) can be accessed here.

In the Review Paper is sets out the changes that the government is considering changing the definition of a spouse, to exclude them if:

• they were separated at the time of death; and
• a property settlement under the Family Law Act 1975 (Cth) had taken place.

If the government passes an amendment bill with this change, it will change the situations I have set out above.

Divorce remains necessary for the purposes of estate planning

However, for now, the law determines that if you are still married, and no divorce order has been obtained, irrelevant of how long you have been separated for, your spouse is still your spouse. If this situation applies to your circumstances, I recommend you update your estate planning documents.

If you need any assistance with your estate planning, please contact our team today.