Avoid surprises after divorce with a family provision waiver

From
Peter Townsend

Peter Townsend

It might come as a surprise to learn that a former spouse, or a spouse from whom you have separated, can still make a claim on a deceased estate even though the estate has been left to children or someone else in your Will.

In a NSW Supreme Court decision in 2012, the Court ordered $125,000 of the deceased’s estate be given to the deceased’s wife from whom he had separated six years earlier, even though she was not named in the Will as a beneficiary.

If your marriage breaks down and you reach a property settlement with your ex-spouse, you must still remember to remove your ex-spouse as a possible claimant against your estate.

The family provisions sections in the NSW Succession Act give ex-spouses the right to make a claim on your estate if they are not suitably catered for in your Will.

The only way that this can be avoided is if your ex-spouse waives those entitlements and that waiver is approved by the Supreme Court.

“Family Court orders are not enough to satisfy this issue. This is State legislation and only the State Supreme Court can approve the waiver.

“Many separated couples have not taken this step and now find that their former spouse could make a claim on their estate, particularly if their share of the original property settlement has not lasted as long as they originally thought that it might,” said Peter Townsend, Managing Director, SuperCentral.

An ex-spouse can’t be forced to waive their rights against your estate, and the whole issue should be discussed by family lawyers during the property settlement negotiations.

By Peter Townsend, Managing Director

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