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WA Does Intended Divorce Affect Deceased Estate?

Discussion in 'Wills and Estate Planning Law Forum' started by wishthingsweredifferent, 24 February 2015.

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  1. wishthingsweredifferent

    24 February 2015
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    My sister passed away recently. She has signed the divorce papers and the exhusband was attending court on the Monday to receive the finalised papers. She died on the Sunday and did not have a will. Does her deceased estate go to the ex-husband or her two small children?
  2. Sophea

    Sophea Well-Known Member

    16 April 2014
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    Hi there,

    The general rule is, when you get divorced your will is cancelled, unless your will expresses a contrary intention or there is other evidence showing this intention. Assuming that your sister and her ex had not completed their property settlement yet, strictly speaking if her death preceded the divorce (you will have to have a look at the actual date on the divorce papers, whether they are the Monday or some date prior), then her estate will be distributed as follows:

    1. If she jointly held any property with her spouse it will automatically vest in him and will not form part of the estate. Divorce does not have any effect on a joint tenancy.

    2. All household chattels will go to the surviving spouse.

    3. If the net value of your sister's property (excluding household chattels) does not exceed $50,000, the surviving spouse is entitled to the whole intestate property. If value of property exceeds $50,000, the surviving spouse is entitled to $50,000 plus one third of the remainder, and her children are entitled to the other two-thirds.

    Whether or not her ex will be considered a surviving spouse for the purposes of the intestate distribution, maybe something that a court has to decide.

    You may want to contact the Public Trustee WA on 1300 746 116 - who may be able to provide further info.
    Rod likes this.
  3. Rod

    Rod Well-Known Member

    27 May 2014
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    Is there any prior written agreement between the two parties on a property settlement? If not, then I agree with Sophea.
  4. lawanswers

    lawanswers Moderator
    Staff Member

    6 April 2014
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