HAVING ANOTHER BITE AT THE CHERRY – CLAIMS AFTER THE FINAL ASSET SPLIT

Imagine this – you and your ex-spouse have gone through the long process of engaging lawyers, running through financial disclosure, negotiating at great length, and finally reaching an agreement on your asset division. Papers are drawn up, and everyone thinks “that’s the end of that!” Fast forward 20 years – your children are now adults, you are in a new relationship, and you have built up your assets all over again . You pass away suddenly, and then your ex-spouse (from 20 years ago) makes a claim on your assets in your estate – how can that be possible?

A common misconception is that a family law financial settlement is enough to prevent your ex-spouse from making a claim against you in future. Unfortunately, this is not correct. In NSW, even if a family law settlement occurs, your ex-spouse can rely on certain rights to make a claim for a share of your estate under the Succession Act 2006 (NSW).

For example, in a recent decision of the New South Wales Court of Appeal, as reported in the St George & Sutherland Shire Leader, Ms Lodin attempted to make a claim against her former Husband’s deceased estate. Dr Mohammad Masoud Lodin, who had divorced from Ms Lodin from twenty years earlier, had passed away and his Will did not make any provision for his ex-wife – one might say, that’s fair enough. At the time of the parties’ separation, a financial settlement was ordered by the Family Court of Australia. Initially, the Supreme Court of NSW awarded Ms Lodin $750,000 from the estate of her former Husband. However, Dr Lodin’s family appealed the decision – the result of the appeal was that Dr Lodin’s Estate did not have to provide any money to Ms Lodin, as Dr Lodin had no moral responsibility to leave money to his former Wife simply because his estate was large.

Even though the Court in this particular matter concluded that Ms Lodin shouldn’t receive any money, the risk of a former spouse making a claim against your estate – in spite of a family law financial settlement already being completed – is a live one.

For example, a similar issue arose following the death of cricket legend, Richie Benaud. Following his passing and their exclusion from Mr Benaud’s Will, Mr Benaud’s former Wife, whom he had divorced in 1967, and his son, made a claim under the Succession Act against Mr Benaud’s estate. Whilst this particular claim seems to have been settled without the need for the Court to make a decision, it goes to demonstrate that even if you exclude your former spouse from your Will, and even if you remarry (as Mr Benaud had), it could still open to a former spouse to bring a claim against your estate upon your passing.

One sure-fire way to avoid the risk of this type of claim is to enter an agreement at the time of your family law settlement. The agreement essentially releases your rights, and the rights your former spouse has, to make a claim from each other’s deceased estate. An experienced Family Lawyer will give you that advice at the time your asset division is being negotiated and finalised.

At Family Law Matters, we have dedicated our careers to the practise of Family Law. Being specialists in this area means that we are able to give you very specific advice about protecting you, your family and your assets – even against claims that may happen 20 years down the track.

If you want practical and sensible information from a Family Law expert, call us on (02) 9523 3007, or access our free online separation pathway tool by clicking here: http://www.familylawmatters.com.au/wheredoistart-separation/

 

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