VIC Inheritance After Separation and Property Settlement?

[Kurtus1981]

Hi there,

First of all, thank you in advance for your help...

Background...

My wife and I separated officially on the 4th April 2016 (18 months ago), however we are still married as she is not ready to sign the divorce paperwork. We have an amicable relationship as nobody did anything nasty, we simply could not live together...

We share the care of our two boys (ages 4 and 6). She has however signed all paperwork in relation to our property settlement.

As such our property settled in January with me keeping my superannuation and her keeping her superannuation, the house and contents.

My question concerns my mother and late fathers' (died August 2012) deceased estate / my inheritance.

My mother is very concerned that despite the fact we have separated, because we are still legally married, she is / could or will be entitled to some part of their estate / my inheritance should anything happen to my mother.

From what I have read, unless she has contributed financially to the inheritance / estate or to the care of either my father or my mother (which she has not in either case) she would not be considered for any estate / inheritance or part there of.

Could you please confirm if this is correct?

Thank you for your time,

Cheers

 

[Tim W]

Of course, you must know that your estranged spouse
is hanging on in the hope of getting a cut of your inheritance
in the property settlement that will be part of your divorce.

Your mother (not you) needs to see a solicitor to draft a will that protects you,
and her grandchildren, and that in general reflects her testamentary intentions,
but is structured to minimise the prospects of a successful Family Provision Claim
by your estranged spouse.

Then, as a matter of urgency, you yourself need to make a new will.
This is because if you die intestate yourself,
then your still-wife will have an entitlement, regardless,
and you may not want that.

While you're there, get advice about the suitability of
a Binding Financial Agreement to your here-and-now situation.

All this is possible, but it's not something you do
with some silly form from the newsagent.

I think you'll find that the price of both
your and your mother's peace of mind
is exactly the same as the lawyer's fee
for doing this work.

 

[sammy01]

So property settlement is done? Stamped by the court? Do you have consent orders clearly stipulating when you see the kids?

The divorce is not so relevant... .Once you get divorced, the ex could still claim on your estate...Heaven forbid you and your mum die in the same car accident and you don't have a will, then anything you might have inherited from mum could likely find its way to the ex.

 

[Rod]

I agree with TimW. The best protection is wills for your mother and yourself, and a BFA between you and wife, preferably with a divorce while things are amicable.

 

[sammy01]

Yup - but I would want to be strategic.. These things quickly get messy especially when $$ is concerned. Look if mum is in good health, there could be an argument for letting sleeping dogs lie, for a while... Especially, if you have concerns that the kids will get used / withheld if things get nasty...

Getting a will sorted is a greater priority than getting divorced, especially if property settlement has already been sought through the courts. Once you have a legally binding property settlement you are pretty much divorced as far as finances go and the ex would have a tough task justifying seeking a re-adjustment because you mum has passed away.

 

[EBDani]

I simply had my father make a new will in that in the untimely event of his passing that what would have been "my" share went straight to my 2 daughters until they turned 25 years old. When the Decree Nisi is finalised he said he'll change it back. Peace of mind if nothing else.

 

[Kurtus1981]

Thank you guys, all comments and thoughts are welcome!

In response to a few comments...

Yes, property settlement is signed and stamped through the court. So binding.

I have not sought consent orders regarding the kids through the court, this has been done through mediation - I realise that this is not binding by any means and does leaves me open to losing the kids. However, I have had to be very very careful in how and what has been negotiated with my wife... In short I gave up the house and contents so that I could see the kids... without this negotiation I would not have been able to see them more then one weekend a fortnight (which would have destroyed me as I am a super involved and active Dad).

I have completed my Binding Death Nomination regarding super - 50% to each boy to go into Trust until 18th Bdays - within my Super account.

I have changed and signed my will, my mother and brother as executors with my entire estate going to the boys in Trust - this is signed and with my solicitor.

Full time care of the boys to go to my wife first and should anything happen to my wife or myself full time care would go to my mother.

I will have to double check on mum's will to ensure that this is all up to date. However I am pretty sure that both myself and my brother are the sole beneficiaries of her estate as well as the executors.

We are both Trustees of her SMSF.

Sammy, I agree totally on your last comment - and this was my understanding regarding property settlement also. Despite the fact things are amicable now, this may not continue forever. I would like to cover as many bases as possible. Thank you.

Thanks again, please feel free to keep commenting or providing your thoughts, I truly appreciate it. Sure beats reading page after page and hoping you have it right in your mind.

Cheers

 

[sammy01]

OK so you've sorta missed the boat... I hate the system, but it is what it is... I'd have encouraged you to give up the assets, but only as long as your time with the kids is locked away in consent orders... Everything she has right now is binding (assets) Everything you want is negotiable (kids)...

Things are amicable - Great... But sorry to be blunt - while things are amicable, it would appear there has been some jostling and haggling. You have her a house - ok... But she definitely owns that house, but your part of the negotiation isn't as definite...

Let's move on... Any chance of getting consent orders for kids done now? or will she likely see this request in a negative light? My concerns.... What if she falls in love with some bloke from Far North Qld and wants to move there? What if you meet a woman and she isn't happy with the kids having a step-mum?

What are the arrangements for the kids right now? Shared care as in 50/50? or something else.
Look, you don't really need to worry all that much... Consent orders / court orders matter... Good back up plan but the fact is they are only bits of paper...

The bits of paper might say she is not allowed to move to Far nth QLD but if she did you would still need to go to court to deal with it... Yep the court orders would help the magistrate understand the history and it would help your case but you're not completely screwed without them.... The magistrate will want to know about history... So with 18 months of shared care under your belt...

If she did move to Far NTH QLD tomorrow, you would still be in a good position to go to court and get a good result (but nothing is certain)

 

[Kurtus1981]

Thanks Sammy, yep I totally get what you are saying, and yep - I left myself open... but this was the only option I had. Running out of options and money to get to court.

We negotiated to 50/50 shared care at a professional mediation centre - then she changed her mind less than 24 hours later stating that I had bullied and intimidated her during the mediation and that care would go to 4 nights a fortnight maximum.

I contacted the mediation centre asking what the professional thought of this accusation - she sat on the fence with her opinion, however did say that it would appear that it was a peaceful and respectful negotiation - with nothing said to her by my ex after I left the mediation session.

Upon her change of heart, we met in a park, I immediately had to defuse the situation as she was grenade quite literally going off. Thank god there were witnesses.

I then negotiated to 6 nights a fortnight. Which my solicitor stated was a reasonable negotiation out of court... and gave me the advice to stick with this. So I did.

Things are calmer now, but she has all the cards. Control is something that some people do well.
My thought through this whole process has been to keep the kids well being at the forefront. Property is replaceable.

I have since rebuilt the material part of my life with regard to home and contents and love seeing the boys. My hope is that my parenting/virtues etc and history would support me against any changes my ex would desire, either in or out of court.

I do find that Its a true shame that a hard working, dedicated fathers get shafted by the system and ex partners.

 

[sammy01]

So you've got 6 nights a fortnight? and half school holidays?

Is there an agreement about Christmas? or are you gonna be the parent who never sees his kids on Christmas day? birthdays? Etc, etc.

Look with 6 nights a fortnight, I'd just keep going on your merry way for at least another 6-8 months. Don't rock the boat.

So some info. Mediation certificates are good for 12 months. What that means is that prior to applying to court you need a recent (12 months) certificate to show that you've done mediation... Just thinking ahead... Just in case... While things are smooth keep it that way... But down the track if things hit a hurdle you will have a good track record of time with the kids... And that is important.

I reckon at this point just stay calm... and more importantly if you can keep things sweet with the ex you will save yourself a world of trouble. Courts are best avoided.