In Western Australia a separated spouse who never divorced is still your spouse for the purposes of the intestacy rules and can inherit your estate thirty years after you last spoke.
A true story
Abandoned on the steps of St Mark’s Basilica in Venice, baby Sally was raised by nuns, never knowing her real parents.
As a young woman, Sally set out on an adventure that would take her around the world. She settled in Albany, Western Australia, where she met Harry, a young shearer and they married.
The marriage was short-lived. When Sally and Harry separated there were no children. There was no common property to speak of and neither of them sought a divorce.
They went their own ways and soon lost contact.
Sally moved to Sydney and enjoyed a successful career as a sports photographer, until fate intervened again and her eyesight failed, forcing her into early retirement. She had to rely on her savings to survive.
Through a lifetime of hard work and frugal living, Harry amassed considerable wealth including a home and investments.
Thirty years after the separation, Harry died intestate, leaving three sisters to whom he was deeply attached.
Harry hadn’t made a Will, so his fortune was divided according to the laws of intestacy. Sally took the lion’s share and his sisters received the crumbs.
Sally had a windfall. She has just made a new Will. Harry is turning in his grave.
Why did Sally inherit?
Because she was still Harry’s wife. Separation has no effect on your Will or on the intestacy rules, no matter how long ago it happened and no matter how completely the relationship ended. Only a divorce changes anything.
Where a person dies without a Will, the Administration Act 1903 (WA) sets out who inherits. A surviving spouse is first in line and where there are no children, the spouse shares the estate with the deceased’s parents and siblings. See What does it mean to die intestate?
Why couldn’t the sisters challenge it?
Siblings aren’t eligible to make a family provision claim in Western Australia.
The Family Provision Act 1972 (WA) lists who can ask the Court for provision out of an estate. The list includes a spouse or de facto partner, children and in some circumstances grandchildren, parents, stepchildren and a former spouse receiving maintenance. Brothers and sisters aren’t on it, however close they were and however much they expected.
Harry’s sisters had no claim to bring. The estate went where the statute sent it.
What should Harry have done?
Made a Will. Harry could have left everything to his sisters. Sally would have been entitled to bring a family provision claim as his spouse, but after thirty years apart with no children, no shared property and no dependency, we don’t like her chances.
Obtained a divorce. Divorce revokes a Will in Western Australia unless the Will was made in contemplation of the divorce and it removes a former spouse from the intestacy rules altogether. Neither Harry nor Sally bothered, because there was nothing to divide at the time. Thirty years later there was.
Frequently asked questions
Can my separated spouse inherit from me if I don’t have a Will?
Yes, if you never divorced. Until a divorce order is made you’re still married and both your Will and the intestacy rules treat your separated spouse as your spouse.
What happens to my Will when I divorce?
It’s revoked, unless it was made in contemplation of that divorce. If you don’t make a new one you die intestate. See How often do I need to update my Will?
Can my brothers and sisters contest my Will?
No. Siblings aren’t eligible persons under the Family Provision Act 1972 (WA). If you want your brothers and sisters provided for, your Will has to say so.
Separated and never divorced?
Make a Will now. It costs a great deal less than what happened to Harry’s sisters.
Book an appointment or call the Wills team on (08) 9220 4433.
See our Wills service and pricing.
Names have been changed to protect the identity of the parties. This article is general information and not legal advice.
