In Queensland, separating from your married spouse does not change the legal relationship recognised under the Succession Act 1981 (Qld). Regardless of how long you have been separated, the relevant law treats you as married until a divorce is finalised. Consequently, your separated spouse continues to have the same legal status as a spouse in an ongoing relationship when it comes to your estate, even if you’ve lived apart for decades.

This legal reality can have two major consequences:

1. Your estranged spouse may inherit under intestacy laws if you die without a will, and
2. Your estranged spouse can contest your will if they believe they haven’t been adequately provided for.

If you die intestate (without a valid will), Queensland’s intestacy rules set out a strict hierarchy of who is entitled to inherit your estate. Under these rules, your spouse, which still includes your legally married but separated partner, is first in line. Where there is a spouse and no children, the spouse receives the entire estate under intestacy.

If you have re-partnered with a de facto spouse at the date of your death, then they will have to share the benefit of your estate with your married spouse.

If you have children, the spouse receives:

• A statutory amount ($150,000 plus household chattels), and
• One-half or one-third share of the remainder of the estate with your children sharing the rest.

These outcomes can be different from what you might have intended. For instance, your estranged spouse may receive a large portion, or even the majority of your estate, leaving children from another relationship, or a de facto spouse with a smaller share than you would have chosen.

Because separation does not remove your spouse from receiving a benefit under the intestacy rules, the only way to avoid this statutory distribution is to have a valid will in place.

While having a valid will prevents your spouse from receiving automatically from your estate it does not completely eliminate the risk of your separated spouse contesting your estate. Until you are formally divorced, your separated spouse is still classed as your spouse under the Succession Act 1981 (Qld). A spouse is entitled to make a family provision claim (“FPA”) if they believe your will does not make adequate provision for them.

That means your separated spouse could challenge the provisions of your will and ask a court to alter it so that they receive a share of the estate.

Even if you have entered a property settlement with your spouse dividing your assets, your ex-spouse retains the right to make an FPA. While a well-executed property settlement is likely to reduce the chance of success by your spouse when making a claim, it may still result in significant costs and delays to your estate.

If you have not changed the way you own property after separation, regardless of any will or intestacy, your interest may still pass automatically to your spouse through survivorship, regardless of what your will states. For example, if you and your spouse own your home as joint tenants, they will inherit the whole property automatically if you die before them.

Moreover, superannuation death benefit nominations and life insurance beneficiary designations often operate outside your will or intestacy rules. If you haven’t updated these after separation, the benefits may still be paid to your estranged spouse.

To minimise the risk of a separated spouse receiving something from your estate, it is important to ensure that you take steps to complete a property settlement, finalise your divorce, prepare a new will, and update beneficiary nominations on superannuation and life insurance.

Estate planning is not a one-off task and should be revisited after major life events like separation. Taking these steps can ensure that your estate ultimately reflects your wishes, not just what the default rules prescribe under Queensland law.

RMO Law can assist you in completing a property separation, finalising a divorce, and preparing a new will to protect your estate and intended beneficiaries.

📞 1800 999 529
🌐 rmolaw.com.au
📧 mail@rmolaw.com.au

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.

Article Authorised by Tim Ryan