At FGD, we care about achieving the best outcomes for you in your family law matter, particularly when it comes to achieving a fair division of your shared assets and ensuring proper care arrangements for your children. We also care about ensuring that your intentions can persevere in the long-term in the event of your death, which may happen unexpectedly.
However, when we speak to clients who have just started consulting a family lawyer, many of them will tell us: “I’ll deal with my Will after my family law matter is over“.
If this thought has passed your mind during a separation, that’s understandable. In that moment, your mind might be exhausted by the family law process. At the same time, you might also be feeling the pressure of personal commitments such as work and parenting. Thinking about what you would like to happen to your assets in the event of your death or what should happen if you lose capacity might be the last thing on your mind.
However, there could be irreversible risks to your loved ones if you die without having considered your estate planning during your family law matter. It is during this period of separation that unexpected death is notorious for bringing about outcomes that do not align with your intentions.
Your Will
If you die without a Will and you are still married, your spouse would be eligible under state laws to receive a large portion of your estate even if you have separated. In some cases, they might even receive your whole estate. This may not be consistent with what you want, if your goal is to ensure that other family members or beneficiaries benefit from your assets.
Even if you do have a Will in the circumstances, this Will might have been one that you prepared with your spouse before your separation. If you have not divorced, the Will would still be valid in most states and territories, and your former spouse could receive your estate if they are named as a major beneficiary. This can happen even if the Family Court has made formal orders dividing your property between you and your former spouse.
Your Enduring Power of Attorney
You might not have turned your mind to what would happen if you lost decision-making capacity during your family law matter. If you have an enduring power of attorney which authorises your former spouse to make decisions on your behalf and provides benefits to them, they would be able to act if the enduring power of attorney has not been revoked by you. If this is the case, you should consider revoking your enduring power of attorney or making a new one that appoints someone who you trust to handle your affairs or even carry out your family law matter if something were to happen to you.
Your Superannuation
Finally, you should also consider how your superannuation should be divided. Superannuation is not automatically dealt with in your Will, so you should consider completing a binding death benefit nomination which sets out who should receive your superannuation death benefits (as well as any associated life insurance). However, if you wish to give your super to your minor children directly, you should consider whether you are comfortable with their other parent being appointed by the super fund to manage the funds for your children until they turn 18.
Instead, you might consider giving your super to your estate to be divided in accordance with your Will, which means that your chosen executor would manage the funds for your beneficiaries. While there are some risks of your former spouse making a claim against your estate if your property matter had not been finalised before your death, it at least ensures that the funds are being managed by someone who you trust. Superannuation is tricky and requires tailored advice.
How to consider your estate plan at the start
Ultimately, we want to ensure that the time and effort involved in finalising a family law matter does not go to waste and your loved ones are protected.
If you have separated and want to consider your estate planning, we recommend you do so at the start of your family law matter.
If you are considering making an appointment with FGD for your family law matter, you are welcome to ask for one of our estate lawyers to meet you afterward for guidance on what you need to do to strengthen your estate planning. You can also let your family lawyer know that you would like to consider your estate planning, and one of our estate lawyers can call you for a complimentary chat to start the process.
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Article By: Jessica Win
Estate Lawyer
When it comes to estate litigation matters, Jess is capable as both a strategist and a tactician. Having also operated in probate and administration for her whole professional career, Jess manages disputes to both engineer the most commercial and meaningful outcomes for clients and ensure that these ideal outcomes can practically take effect. Jess is passionate about guiding her clients throughout the whole litigation experience, from providing initial advice to carrying out any final work following the finalisation of a dispute.