What happens if I die without a will and before I've finalised my divorce?

Date: May 18, 2015

It's never too early to write a will. As part of the estate planning process, making a will means a person's assets will go to the people they want them to go to when they die.

Leaving the creation of a will too late could mean people inherit a share of an estate the deceased may not have wanted them to receive.

Without a legally valid will, the person is said to have died intestate. This means the rules of intestacy will decide who should inherit from their estate, and this may not be the same as the deceased would have wished for .

If there is no will, people in certain relationships are automatically entitled to inherit from a person's estate, and the courts have rules on how to distribute the assets. Blood family members are a type of relationship that usually receives a share of an estate - another is marriage. 

Dying without a will means spouses usually receive a share of their decreased partner's assets. However, during a relationship breakdown - but before a divorce is finalised - a spouse is still legally able to inherit under the law, if there is also no will in place.

In one particular case in NSW, the lack of a simple signature on the divorce papers meant inheritance was going to the almost ex-wife because her former partner died intestate.

Getting a divorce cancels any gift a person makes to their former spouse under his or her will. It also means they will not inherit under a situation of intestacy. Assets will then be distributed according to a pre-determined formula with certain family members receiving a defined percentage of your assets despite what you may have wished.

Having a will is also important to spare surviving family and friends any unnecessary financial hardship and emotional stress. This is particularly true for a person who was in de facto relationships with the deceased as they need to supply sworn evidence of their relationship with the deceased in order to inherit from that intestate estate.

For people thinking about writing a will soon rather than later, contact an estate lawyer with expertise in the field.