When a couple separates but does not finalise a divorce, the legal and financial implications following one spouse’s death can be significant.
Under the Family Law Act 1975 (Cth), separation alone does not dissolve a marriage - meaning the surviving spouse may still retain inheritance rights, superannuation entitlements, or claims against the deceased’s estate.
This area of law sits at the intersection of family law, succession law, and superannuation regulation, requiring a clear understanding of how each framework applies when a separated spouse passes away.
Inheritance Rights for a Separated Spouse in Australia
In Australian law, a separated spouse remains legally married until a divorce order is made. As such, when one spouse dies during separation, the surviving spouse may still be recognised as a legal beneficiary - particularly if no valid will exists.
Under each state’s succession legislation (for example, Succession Act 2006 (NSW), Administration and Probate Act 1958 (Vic)), the surviving spouse continues to hold inheritance rights unless a final divorce decree has taken effect.
These rights may include:
- A statutory share of the deceased’s estate under intestacy rules
- Entitlement to apply for family provision if excluded from the will
- Rights to jointly owned property and superannuation death benefits, where applicable.
In essence, legal separation does not revoke spousal status - a fact that often surprises individuals who believe separation automatically severs inheritance rights.
How Does Intestacy Affect a Separated Spouse?
If a person dies without a valid will in Australia, their estate is distributed under intestacy laws. In this situation, a separated but not divorced spouse is still legally recognised as the deceased’s husband or wife under the Family Law Act 1975 (Cth).
This means the separated spouse remains entitled to inherit part or all of the estate, depending on whether the deceased had children or a new partner. If there are no children, the surviving separated spouse generally receives the entire estate. If there are children, the spouse’s share is reduced but still protected under state-based succession laws such as the Succession Act 2006 (NSW) or Administration and Probate Act 1958 (Vic).
However, if the deceased had formed a new de facto relationship, both the separated spouse and the new partner may have competing rights to the estate. In these cases, the Court considers each person’s financial dependency, duration of relationship, and contributions to the family’s welfare before dividing assets.
In short, separation does not end inheritance rights. Until a divorce order is granted, the surviving spouse continues to be treated as the lawful next of kin in intestacy matters.
Impact of Separation on Superannuation Death Benefits
Superannuation is a distinct legal asset and is not automatically part of the deceased’s estate.
Instead, distribution depends on the super fund trustee or on a binding death benefit nomination lodged before death.
If a separated spouse remains the nominated beneficiary, they may still receive the benefit - regardless of separation - unless a new nomination was made.
Trustees generally consider:
- The financial dependency of the claimant at the time of death
- Whether the relationship had ceased both physically and financially
- Whether a valid binding nomination exists in favour of another party.
Because trustees have discretion, it is critical for separated individuals to update nominations immediately after separation to avoid unintended entitlements.
Inheritance Rights: Separated vs Divorced Spouses
The distinction between being separated and divorced in Australia determines whether a person retains legal status as a spouse for inheritance and superannuation purposes.
Here’s how the law treats each situation:
Separated but Not Divorced
- The surviving spouse is still legally recognised under the Family Law Act 1975 (Cth).
- May inherit from the deceased’s estate under intestacy laws, even if the couple lived apart.
- Can file a family provision claim if excluded or inadequately provided for in the will.
- May remain eligible to receive superannuation death benefits, particularly if still listed as a beneficiary or financially dependent.
Divorced
- Once a divorce order is final, all automatic spousal inheritance rights are extinguished.
- The ex-spouse can only receive assets if they are explicitly named in a valid will.
- Loses standing to make a family provision claim as a “spouse,” unless another legal ground (e.g., de facto relationship) applies.
- No entitlement to superannuation benefits unless specifically nominated in a binding death benefit nomination.
This distinction highlights that finalising a divorce is not merely procedural - it formally ends the legal recognition of marriage and eliminates automatic inheritance rights that otherwise continue after separation.
What Happens to Jointly Owned Property?
When a separated spouse dies, what happens to jointly owned property in Australia depends on how the ownership was structured - either as joint tenants or tenants in common.
If the property was held as joint tenants, the law automatically transfers full ownership to the surviving spouse under the right of survivorship, regardless of separation or will provisions. This means the deceased’s share does not form part of their estate and cannot be distributed to other beneficiaries.
If the property was held as tenants in common, each person owns a distinct share that becomes part of their estate upon death. That share is then distributed according to the deceased’s will or, if no will exists, under intestacy laws.
For separated couples, this distinction is critical. Remaining joint tenants can lead to unintended inheritance, allowing a former partner to acquire full ownership automatically. To prevent this, individuals should sever the joint tenancy - a straightforward legal process that converts the ownership into tenants in common and ensures each share passes according to the owner’s estate plan.
In summary, separation alone does not alter joint ownership rights. Only legal action, such as severing the tenancy or completing a divorce, can ensure that property passes according to personal wishes rather than automatic survivorship rules.
Can a Separated Spouse Challenge a Will?
Yes. A separated but still legally married spouse remains an eligible person under family provision legislation across all Australian jurisdictions. This allows them to contest a will if they have not been adequately provided for.
In determining such claims, courts assess:
- The duration of the marriage and period of separation
- The claimant’s financial need and health
- The size of the estate
- Any contributions made to the deceased’s welfare or property.
Each claim is decided on fairness and dependency rather than strict entitlement, making legal representation essential for separated spouses navigating estate disputes.
Australian Probate Laws and Estate Administration
Probate is the process of legally recognising a will and authorising an executor to manage the estate.
If a separated spouse applies for probate or administration, the court examines whether they remain the appropriate person to do so.
Factors include:
- Whether a divorce was pending or completed
- Whether the separated spouse was named as executor in the will
- Whether the appointment is likely to cause conflict among beneficiaries.
In practice, courts may appoint an independent administrator if family tension prevents neutral administration.
Legal Steps for a Surviving Separated Spouse
If a separated individual’s partner dies, several legal steps should be taken promptly:
- Obtain the death certificate and locate the will (if one exists).
- Consult a family or estate lawyer to determine entitlements and obligations.
- Identify joint assets, bank accounts, and superannuation funds.
- Check for existing financial agreements or property orders under the Family Law Act 1975 (Cth).
- Review superannuation nominations and lodge a claim if appropriate.
- Consider filing a family provision claim within statutory time limits (typically 6–12 months).
Professional advice ensures compliance with both family and probate law, preventing errors that could forfeit entitlements.
Do Separation Agreements Affect Inheritance Rights?
A separation agreement does not automatically remove a spouse’s inheritance rights in Australia. Even if a couple has formally separated and signed a Binding Financial Agreement (BFA) or property settlement, those documents deal only with asset division during their lifetimes - not with inheritance or estate distribution after death.
Under the Family Law Act 1975 (Cth), a separation agreement determines how property, liabilities, and superannuation are divided between the parties. However, under succession law, the surviving spouse remains legally recognised until a divorce order is finalised. This means they may still inherit under a will or intestacy, unless the deceased has specifically updated their will to exclude them.
To fully remove a separated spouse’s inheritance rights, one must:
- Obtain a divorce order to legally end the marriage
- Update the will to reflect current wishes
- Review superannuation nominations and beneficiary designations to ensure alignment with the new estate plan.
In essence, a separation agreement can clarify property rights while both parties are alive, but it does not override estate and succession laws. Without formal divorce or updated testamentary documents, a separated spouse can still claim against the deceased’s estate.
Family Provision Claims by Separated Spouses
Separated spouses who are excluded from a will may file a Family Provision Claim to obtain adequate maintenance or support.
Courts evaluate:
- The financial circumstances of both the claimant and competing beneficiaries
- The claimant’s contribution to the deceased’s estate or family
- Any moral obligations owed by the deceased.
The process is complex and highly fact-dependent, making finding a good family lawyer essential to building a persuasive claim and ensuring fair recognition of entitlements.
Children’s Inheritance Rights When Parents Are Separated
Children’s inheritance rights remain unaffected by their parents’ marital status. Under all Australian intestacy regimes, children - whether biological or adopted - are primary beneficiaries if a parent dies without a will.
Where there are multiple relationships, the court considers each child’s dependency and ensures provision aligns with fairness and parental responsibility. This safeguard ensures children are never disadvantaged due to their parents’ separation.
FAQs: Separated but Not Divorced and Spouse Dies in Australia
Even with clear statutory frameworks, separation often creates uncertainty about what happens when one spouse dies before divorce finalisation. Below are key questions frequently raised by separated Australians.
What are the inheritance rights for a separated spouse in Australia after their partner dies?
A separated spouse remains a lawful spouse under Australian law and may inherit through intestacy or lodge a family provision claim if inadequately provided for.
Can a separated spouse challenge a will in Australia?
Yes. A separated but legally married spouse qualifies as an “eligible person” to contest the will within the statutory period, typically 12 months from death.
How does intestacy affect a separated spouse if their partner dies without a will?
The surviving spouse retains statutory inheritance rights and may share the estate with children or de facto partners, depending on financial dependency.
What happens to jointly owned property when a separated spouse dies?
If held as joint tenants, ownership transfers automatically to the surviving owner. Severing the joint tenancy ensures the deceased’s share passes under their estate.
Do separation agreements affect inheritance rights?
They may limit entitlements but do not fully remove them unless the divorce is finalised. Courts view such agreements as guidance, not absolute exclusion.
Can a separated spouse access superannuation death benefits?
Yes. If still nominated as a beneficiary or deemed financially dependent, a separated spouse may receive a death benefit under superannuation law.
What should a separated spouse do after their partner’s death?
Seek immediate legal advice, secure relevant documentation, and verify whether probate, superannuation, or property proceedings apply.
Final Thoughts
The death of a spouse during separation can expose complex intersections between family and estate law.
Because marriage remains legally intact until a divorce order is finalised, inheritance and superannuation entitlements may continue unexpectedly.
To protect assets and ensure fair outcomes, separated individuals should formalise divorce, update wills, and seek professional guidance from lawyers specialising in both family and succession law.
If you are navigating the death of a separated spouse and need expert guidance on inheritance, superannuation, or probate matters, LegalFinda can connect you with a trusted legal professional. Visit LegalFinda to find a family lawyer who specialises in both family and estate law across Australia.
