Estate Planning After Divorce or Separation
When a couple is married or are adult interdependent partners (hereinafter called “AIPs,” for short) and they have no children together, then each of them will be entitled to the whole estate of the other person upon surviving the other person. If the couple has children at the time that one of them passes on, then the estate of the deceased still goes to the surviving spouse/AIP if the surviving children are also descendants of that surviving spouse.
For example, Bob and Laura have a son together named Thomas, then Bob dies without a Will. Laura would be entitled to the whole estate of Bob. The assumption in the law seems to be that the surviving spouse will make arrangements for her descendants so should not have to be split the estate of her partner with them at that time. However, if the court is persuaded that allowing Laura to inherit all of Bob’s estate does not adequately provide for their child, Thomas, then it can still require that some portion of Bob’s estate be set aside for Thomas’ benefit.
If the surviving children of the deceased spouse/AIP are not also the descendants of the surviving spouse, then the surviving spouse gets the greater of 150K or ½ of the net value of the estate. Any surviving children who are not also her children would each receive an equal share of what is left. Hence if the estate of the deceased spouse/AIP is less than 150K, those children might not receive anything. However, the caveat mentioned above about the court intervening to give less to the surviving spouse/AIP and more to the surviving children can still apply if the court thinks that the children need more than what they otherwise would get under the intestacy law.
What if the married couple is separated at the time that one predeceases the other? The surviving spouse is not entitled to inherit from the other’s estate if at least one of the three applies:
- They are parties to a declaration of irreconcilability under the Family Law Act.
- They have signed a separation agreement finalizing their division of property.
- They have lived separate and apart for more than 2 years at the time of the death in question.
If the separated couple is not married but had been AIPs, then they lose AIP status upon separation and any automatic inheritance rights of the survivor disappear as part of the separation. However, the surviving AIP might have some rights to the deceased’s estate under the family law.
If there is no surviving spouse/AIP, then the estate goes to the surviving children in equal shares. If a child predeceased the parent but left living descendants of their own, then that child’s share gets split equally among her own descendants.
There are further rules for the relatives that can inherit if there are no children or spouse/adult interdependent partners.
Where there is a Will
Generally, one is free to decide to leave one’s property to anyone who wants in one’s Will and the terms of the Will will trump the intestacy rules described above. However, there are some limits.
Before a deceased spouse/AIP’s estate can be distributed according to their Will, any legal claims on that property must first be settled. If the parties were separated and the surviving spouse/AIP is not in the Will but had started a court claim for the division of property, then generally that division has to be completed first, or at least enough of the estate needs to be set aside to satisfy the survivor’s claim before the beneficiaries named in the Will can get their share. Generally, the surviving spouse/AIP would file an application to suspend the distribution of the estate to the beneficiaries until that was done.
Likewise, if the surviving spouse/AIP was still owed support at the time of the other party’s death, then the survivor can apply to the court to have that support paid from the estate. This could mean keeping some of the estate invested to generate returns for the surviving spouse/AIP. However, there might not be much money left for both support for the surviving spouse/AIP and the beneficiaries named in the Will as a result. Therefore, it is usually best, where there is a significant chance that the separated spouse/AIP left out of the Will would be owed support from the deceased, to arrange for life insurance with that person as the beneficiary ahead of time. The cost of the policy can usually be defrayed elsewhere, such as by reducing the monthly amount of support paid to account for it.
If the spouses/AIP were not separated at the time that one died, the survivor is entitled to some measure of support from the estate even if he or she has been left out of the Will or, in the view of the court, inadequately provided for in the Will. Also entitled to some share of the estate are children who are under the age of legal maturity, children between the ages of 18-22 who cannot live on their own because they are full-time students, children over the age of 18 who are too disabled to earn their own livelihood, and any grandchildren or grandchildren under the age of 18 for whom the deceased stood in the place of a parent for. Consequently, it is sometimes best not to leave such people out of your Will entirely or to leave them with too small of a share because they might not take that lying down after your passing and tie up the distribution of the estate in court, thereby making life more complicated for the people that you had hoped to leave your estate to.
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