Death & Separation - your partner could get everything

In this article we explain how to protect your share of what you own pending your property settlement getting finalised or getting divorced.

Your spouse could end up with the vast majority of what you own unless you have:-

1. updated your Will;
2. protected your house by severing your joint tenancy;
3. updated your nominated beneficiary on your superannuation policy.

Step 1 - Your Will

Unless you have a valid Will updated after you have separated, your spouse could still get everything when you die, if you are not divorced.  In Queensland when you die, property is distributed either pursuant to:-

1. Your Will – most married couples and many defactos will leave everything to each other when they die. Separation does not by itself revoke your current Will.  Accordingly your old Will remains valid and binding once you have separated unless you have updated your Will.
2. Rules of Intestacy – in Queensland if you die without a Will there are rules in the Succession Act which mean your spouse, even your defacto spouse, will get the majority of what you own.

Separation and completing your property settlement does not necessarily automatically change anything for your Will, especially if you are still married and have not followed through with a divorce.

Preparing a Will after separation but before a property settlement is tricky and needs to be carefully worded.  

Step 2 - Severing Joint Tenancy- Protecting the House

In Queensland there are two ways to own property, as “joint tenants” or as “tenants in common”. 

Most married couples and a lot of defacto couples own property as “joint tenants”.  The major difference between the two ways to own property jointly is that if you, as one of the joint tenants dies, the other tenant (often your spouse) receives your share in the property regardless of what your Will might say.  If the property is owned as tenants in common, then your share of the property when you die becomes part of your estate to be divided in accordance with your Will.

Accordingly, once you have separated, it is important to sever your joint tenancy.  This will mean that both you and your estranged spouse continue to own say 50% of the property each however when you die, your 50% share can be distributed in accordance with the terms of your Will.

You can sever a joint tenancy together with your estranged spouse or if the other owner does not want to co-operate, it can be done solely by you provided the appropriate paperwork is given to them first.

To guide you through the process of severing the joint tenancy and protecting your home, you should obtain independent legal advice.  This is only part of the solution though, you also need to update your Will and update the nominated beneficiary with your superannuation.

Step 3 - Update Your Superannuation Policy

When your marital or family circumstances change, it is important that you review the beneficiary nomination for your superannuation fund. Keeping it up-to-date will ensure it remains valid and effective.

You can usually change your nomination at any time, in writing to the super fund.

It is vital that you discuss with a lawyer severing a joint tenancy, updating your Will and updating the nominated beneficiary with your superannuation fund so that it takes account of these circumstances. 

Although it may not seem likely you are going to die in this period of time, would you really want to risk it?  Our experienced family law team can assist you, contact us by phone on (07) 4963 2000 or via the contact form below.