Are you considering how to provide for your second wife in your will? Perhaps you’re a second wife concerned about your deceased’s first marriage taking precedence over your inheritance rights and those of your children. These sensitive and distressing disputes over an estate call for a family law expert that can guide you through the process and advocate for your best interests.
Inheritance rights in Australia
It’s important to understand what happens to the assets like property or holdings of an estate after someone dies and who is considered a legal heir according to each state or territory’s Succession Laws. There’s an order of succession which determines who is “first-in-line” to inherit a deceased’s property without an estate plan or a will (intestate).
Intestate succession (in order of importance):
- Surviving spouse(s)
- Nieces and nephews
- Aunts or uncles
- The Crown
Many people want more control over how their estate is distributed after they’re gone. Making provision for loved ones and friends will greatly reduce the stress of losing a loved one. However, in the cases when a spouse from a first marriage feels an estate plan hasn’t adequately provided for them or their children, it’s comforting to have a basic understanding of who is entitled to what.
Does a spouse automatically inherit everything in Australia?
Community (marital) property isn’t a principle of ownership in Australia. Property settlement after a death is determined in accordance with the Family Law Act 1975 (Cth).
Typically, when one party dies the co-owned real estate goes to the surviving party which can be a surviving spouse. However, the right of survivorship can be contested by family members, including de facto spouses. According to the Family Law Act 1975, de facto relationship is one in which both parties are:
- a) Not legally married to each other.
- b) Not related to each other by family.
- c) Living together on a “genuine domestic basis.”
A de facto relationship can be between two parties of the same sex and one party in the de facto relationship can be otherwise legally married (civil union) or in another de factor relationship. If you’re a second spouse, a former partner could then make a claim on your inheritance from your deceased partner’s estate.
A moral duty to provide
A testator’s freedom to dispose of their property as they see fit is balanced by a moral duty to provide for eligible next of kin such as a civil partner, former spouse and children. In a will dispute, a claim to an inheritance from the deceased’s estate is handled differently, depending on the state you live in.
State succession laws
A former spouse (husband or wife), de facto or civil partner has the right to contest a will based on a lack of provision under The Succession Act. The legal terms related to how family members are cared for out of a will and trust are governed by Family Laws of each state and territory. Ultimately, the Court considers a Family Provision Claim by any party on a case-by-case basis.
As you might imagine, common grounds for contesting a will are made by an adult child of the first marriage, especially when the second spouse benefits from the estate. Regardless of who disputes a will, the Court weighs several factors before granting an order for provision.
A few key considerations by the Supreme Court include:
- The size of the estate.
- The financial need, age and health of the applicant.
- Whether the applicant was maintained by the deceased person.
- How other beneficiaries will be affected by an inheritance change, if one is made.
- If the will-maker had a moral duty to the applicant.
There are some differences in the process for disputing a will. For example, in New South Wales (NSW) and Victoria a family provision claim can be made before probate, but won’t be heard by the Court until probate has completed. Also, each state has deadlines for filing a claim.
Time limit to submit a family provision claim:
- Victoria: Six months to the date of the granted probate.
- Queensland: Six months from the date of death to notify the executor of the claim and up to three months to lodge the claim with the court thereafter.
- Australian Capital Territory and NSW: 12 months from the date of death to lodge a claim with the courts.
- Western Australia: Six months after probate.
- Northern Territory: 12 months from the date of probate.
- Tasmania: Three months to lodge a claim with the court after probate.
Make provision for your second spouse
An estate plan can protect your second spouse and provide for all those you care about. You may have a prenuptial agreement that specifies the division of property and assets upon dissolution of the union or death. But, if you wish to provide for anyone else, a will and testamentary trust that has been prepared by an expert in inheritance law can ensure your wishes are carried out after death.
Case Study: First-wife’s daughter
We take on cases other firms don’t. This case is one such example.
We represented a daughter of the deceased from a first marriage. Our client’s father had left the majority of his assets to his second wife, with only $10,000 bequeathed to his daughter. At the time of death, the deceased’s estate had an estimated value of $400,000. That would make our client’s inheritance from her father’s estate about 2.5% of its value.
During the marriage, the deceased purchased an equal share in the home of his second wife, which she already owned outright. The deceased paid for his share of the property with money given to him from our client’s grandparents. The main issue in this case was the lineage of the monies in the estate.
We were able to successfully argue that should the second wife receive the full benefit of the deceased’s estate, she would effectively have been paid twice for her own property.
Read more about our successful will dispute claims.
Your inheritance lawyer
At Gerard Malouf & Partners, we offer a no win, no fee scheme to assure you that we focus on the case instead of the costs. We understand the very sensitive and distressing circumstances of a will dispute. That’s why we are pleased to introduce a fixed fee arrangement that will reduce or eliminate the financial exposure and risks for our will and inheritance dispute clients.
To get started, make an enquiry today.