A separation without a property settlement before a spouse dies

A SEPARATION WITHOUT A PROPERTY SETTLEMENT BEFORE ONE PARTY DIES

If neither spouse makes an application for property orders to the Family Court (or Federal Circuit Court exercising power under the Family Law Act) before one spouse dies, neither the surviving spouse nor the deceased’s spouse’s executors can file an application.

What happens if the surviving spouse cannot seek an order?

The surviving spouse can make an application to the trustee of the deceased spouse’s superannuation fund for all or part of the deceased’s death benefit superannuation. Superannuation is not covered by a Will or under intestacy laws if there is no Will.

If the trustee of the superannuation fund makes an unfavourable decision, the spouse can apply to the Australian Financial Complaints Authority (AFCA) to overturn the decision of the trustee of the fund.

In a recent case, a spouse, who had been separated from her now deceased spouse, for 18 months but had had no financial settlement with her spouse, applied to the AFCA to overturn the decision of the trustee who had given her none of the deceased’s super. The AFCA decided that the deceased spouse had intended to provide for his wife in a family law financial settlement and has this had not occurred before his death, the wife should receive 50% of the deceased spouse’s superannuation and the 2 children should receive 25% each.

If you need to discuss superannuation nominations or family law issues, contact Kathy Chase of Pittwater Family Lawyers by sending her email at: pittwaterfamilylawyers@gmail.com or telephone her on (02) 996565 or 0418 285 307.