Under Australian law, separation does not terminate a marriage. Until a divorce order is granted, each spouse continues to hold certain legal rights - including potential entitlement to the other’s estate. When one partner dies before a divorce is finalised, the surviving spouse may still inherit, unless succession laws or an update will provide otherwise. Understanding these rules is critical for anyone navigating both family and estate law after separation.
What Happens If a Spouse Dies While Separated but Not Divorced?
If a spouse dies while separated but not yet divorced in Australia, the surviving partner remains a legal spouse in the eyes of the law. This means they may still have inheritance rights, regardless of how long the separation has lasted or whether the couple lived apart.
Under Australian family and succession law, marriage only ends when a divorce order is formally granted by the Federal Circuit and Family Court of Australia (FCFCOA). Until that happens, the surviving spouse can still:
- Inherit under intestacy laws, if the deceased left no valid will
- Benefit from any provision in the will that still names them as a beneficiary or executor
- Challenge the will by making a family provision claim if they believe they were not adequately provided for
- Receive superannuation death benefits, if the deceased did not update their binding nomination after separation.
The exact outcome depends on several factors - including whether a will exists, how property was held (jointly or separately), and whether financial settlements or Binding Financial Agreements were made before death.
Because separation does not automatically revoke legal or financial rights, surviving spouses often remain entitled to significant portions of the deceased’s estate. This is why legal practitioners strongly recommend updating wills, superannuation nominations, and property arrangements as soon as separation occurs.
How Does Intestacy Affect a Separated Spouse?
If a person dies without leaving a valid will (known as dying intestate) while still legally married but separated, the surviving spouse often retains the right to inherit under Australian intestacy laws. Separation alone does not remove a spouse’s legal status, meaning they may still be treated as the deceased’s lawful partner for estate distribution purposes.
Under the Succession Act 2006 (NSW) and equivalent legislation across other states and territories, a separated spouse can still inherit:
- The entire estate, if there are no surviving children or dependants
- A major share of the estate, if the deceased had children or other eligible relatives.
However, courts also consider the nature of the separation when applying these rules. If evidence shows that the relationship had permanently ended - for example, the couple lived apart, maintained separate finances, or executed a property settlement - the surviving spouse’s entitlement may be reduced or denied altogether.
In practice, intestacy creates significant legal uncertainty for separated couples. Unless the deceased updated their will after separation, the surviving spouse can still benefit from the estate, even when there was no ongoing relationship. That’s why individuals are strongly advised to prepare or revise their will immediately upon separation to reflect their true intentions and prevent unintended inheritance outcomes.
Inheritance Rights: Separated vs Divorced Spouses
The legal distinction between separation and divorce has significant implications for inheritance:
- Separated spouses remain legally recognised until a divorce is granted. They may inherit under a will or intestacy unless expressly excluded.
- Divorced spouses lose their status as legal partners. Upon divorce, any gifts or executor appointments in favour of the ex-spouse are automatically revoked under most succession statutes.
Because separation alone does not alter marital status, individuals should immediately update their wills, superannuation nominations, and property arrangements to reflect their new intentions.
What Happens to Jointly Owned Property?
If a separated couple owns property jointly and one spouse dies before the divorce is finalised, the type of ownership determines what happens next.
Under Australian property law, most married couples hold real estate as joint tenants. In this arrangement, the right of survivorship applies - meaning the deceased’s share automatically transfers to the surviving spouse, regardless of separation or what the deceased’s will says. The property does not form part of the deceased’s estate, and beneficiaries named in the will have no claim to it.
To prevent this automatic transfer, separated individuals can sever the joint tenancy and change ownership to tenants in common. This change allows each person’s share of the property to be distributed according to their will or intestacy rules, rather than passing directly to the other spouse.
Failing to update ownership after separation often leads to serious estate disputes, especially between surviving spouses and adult children from previous relationships. That’s why anyone who separates should seek legal advice immediately to review all jointly owned assets - including real estate, bank accounts, and investments - and ensure their estate planning reflects their current intentions.
Do Separation Agreements Affect Inheritance Rights?
Yes - a separation agreement can affect inheritance rights, but it does not automatically revoke them. In Australia, separation alone does not end a marriage in law, and a surviving spouse’s entitlement to the deceased’s estate continues until a divorce order is finalised.
However, a Binding Financial Agreement (BFA) or a formal property settlement executed under the Family Law Act 1975 (Cth) can significantly limit or clarify each party’s financial claims. If such an agreement clearly outlines how assets are to be divided and states that no further claims can be made upon death, it can reduce the likelihood of inheritance disputes.
Still, unless the agreement explicitly addresses estate rights or succession entitlements, the surviving spouse may retain the ability to:
- Make a family provision claim under state succession laws
- Inherit through intestacy, if the deceased did not leave a valid will.
In practice, separation agreements are most effective when paired with updated wills and superannuation nominations. This ensures the couple’s financial intentions are fully protected under both family and succession law. Without these complementary measures, a separated spouse could still benefit from the deceased’s estate despite prior financial settlements.
Superannuation and Death Benefits
Superannuation is treated separately from the estate unless directed otherwise. If the deceased failed to update their binding death-benefit nomination after separation, the super fund may still pay the benefit to the former spouse.
To prevent this, individuals should:
- Lodge a new binding nomination naming a current dependant or legal personal representative
- Review their fund’s governing rules
- Align their superannuation and estate documents to avoid conflicting instructions.
Superannuation disputes are among the most contested aspects of post-separation estate administration, underscoring the importance of proactive legal and financial advice.
Can a Separated Spouse Contest the Will?
Yes. Under family-provision legislation in each state and territory, a separated spouse may still be eligible to claim provision from the deceased’s estate.
In New South Wales, section 57 of the Succession Act 2006 (NSW) permits a separated or former spouse to bring a family provision claim where they can demonstrate:
- Financial dependency or ongoing obligation from the deceased
- A lack of adequate provision in the will
- That it is just and equitable for provision to be made.
The court will assess factors such as the duration of the marriage, the financial circumstances of both parties, and any prior property settlements.
For anyone facing such a scenario, engaging a specialist solicitor via find a family lawyer platform can provide strategic guidance and representation in estate litigation.
Practical Steps to Protect Your Estate While Separated
Separated individuals should take immediate steps to prevent unintended inheritance outcomes:
- Update or draft a new will clearly excluding the former spouse if that reflects intent.
- Change joint property ownership to tenants in common.
- Review superannuation nominations and insurance beneficiaries.
- Revoke powers of attorney and guardianship appointments previously given to the spouse.
- Finalise financial settlements through a Binding Financial Agreement or consent orders.
- Seek independent legal advice to ensure compliance with both family and succession laws.
Failure to act may result in an estranged partner inheriting substantial assets contrary to the deceased’s wishes.
Frequently Asked Questions
Although the law appears clear, inheritance after separation often depends on timing, documentation, and intent. Below are answers to the most frequent questions under Australian estate law.
Does a separated spouse automatically inherit in Australia?
Yes, if the marriage has not been legally dissolved, a separated spouse remains entitled under intestacy laws unless expressly excluded by a valid will.
Can separation revoke a will?
No. Only a divorce revokes clauses in a will referring to a former spouse. Separation alone does not alter testamentary documents.
What if the deceased had no will?
The surviving spouse is treated as a lawful partner under intestacy provisions and may receive all or part of the estate, subject to evidence of permanent separation.
Can a separated spouse make a family-provision claim?
Yes. If financially dependent or inadequately provided for, the separated spouse may bring a claim against the estate under succession law.
Does a financial agreement remove inheritance rights?
Not automatically. A Binding Financial Agreement affects property entitlements under family law but does not extinguish rights under succession law.
What happens to superannuation when one spouse dies while separated?
Unless a new binding death nomination is made, super funds may still pay death benefits to the separated spouse. Regularly updating nominations is crucial.
Final Insights
Remaining separated but not divorced can create complex intersections between family and estate law. Without formal estate planning, a separated spouse may inherit substantial assets or challenge the estate, often against the deceased’s intentions.
To safeguard against such outcomes, individuals should immediately review their wills, property ownership, and financial arrangements with professional guidance. Platforms like LegalFinda make it easy to find a family lawyer with expertise in both divorce and succession law, ensuring assets are distributed in accordance with true intent and legal compliance.
