What happens to my property and spousal maintenance rights if my former partner dies?

17 February 2020

The death of a former partner may have unintended consequences in relation to the surviving partner’s right to property settlement, spousal maintenance and estate planning.

Property settlement

You cannot commence property settlement proceedings if your former partner has died.

If, however, you had already commenced proceedings and your former partner dies, the court may allow you to continue those proceedings against your former partner’s legal personal representative on behalf of their estate.

In deciding whether the proceedings can continue, the court must be satisfied that:

  1. The court would have made property settlement orders if the deceased party had not died; and
  2. It is still appropriate to make such property settlement orders.

If the court is satisfied of the above criteria, the court may make such orders as it considers appropriate with respect to any of the property of the parties to the marriage or de facto relationship or either of them, and any vested bankruptcy property.

Any orders made by the court may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

Spousal maintenance

As with property settlement proceedings, you cannot commence spousal maintenance proceedings if your former partner has died.

However, in contrast with property settlement proceedings, spousal maintenance proceedings cannot be continued after the death of one of the parties.

Any existing orders for spousal maintenance cease on the death of either the party receiving or making the spousal maintenance payments.

It is important to note that whilst the obligation to pay spousal maintenance ceases upon the death of one of the parties, spousal maintenance provisions in orders or a Financial Agreement can still be enforced after the death of the payer if:

  1. The spousal maintenance provisions are contained in a Financial Agreement, as opposed to a court order - this is because the Financial Agreement is binding on the heirs, executors, administrators and assigns of the parties. The duration of the payments must be specifically expressed as extending beyond the death of the paying party;
  2. There is an order for periodic or lump sum spousal maintenance, and such order is secured under the Family Law Act. Whilst the order for spousal maintenance itself will cease, the maintenance may still be payable due to the security order (which is separate to the spousal maintenance order).

If you would like assistance understanding your rights, our highly skilled family law team can tailor advice to suit your specific circumstances. Please don’t hesitate to get in touch.

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