As a direct result of the Family Law Act (1986) the administration of estates has become vastly more complicated than it was formerly. Prior to its enactment,the only statutory claim that could interfere with the testate or intestate distribution of the deceased’s assets was one brought by a “dependant” pursuant to Part V of the Succession Law Reform Act the grounds that the deceased had not made “adequate provision” for the claimant.
With the passage of the Family Law Act, the estate trustee has to now additionally be concerned with a potential claim made by a surviving married spouse.
Unless the deceased spouse’s will expressly provides that the surviving spouse can have his or her entitlement under the will in addition to his or her entitlement under
s. 5(2), the surviving spouse is put to an election. He or she may claim either the entitlement under the will or an equalization payment, but not both.
This is particularly of importance to separated spouses who have not taken the steps to get a formal legal divorce and would like to “cut” their former spouse out of their will.
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