Separated But Not Divorced: Who Gets the Inheritance in South Australia?

When couples separate, they often focus on practical issues such as living arrangements, finances, and parenting. What sometimes gets overlooked is how separation can affect estate planning.

A situation that occasionally arises is where a person dies while separated but not yet divorced. Families are often surprised to learn that separation alone does not necessarily remove a spouse’s entitlement to inherit.

In South Australia, inheritance and estate disputes are governed by the Succession Act 2023 (SA). Importantly, the law still recognises a spouse as legally married until a divorce order becomes final. As a result, issues involving separated but not divorced inheritance can become complicated if estate planning has not been updated after a relationship breakdown.

Separation Does Not Automatically Change a Will

Many people assume that once a relationship ends, their former partner will no longer benefit under their Will. That is not usually the case.

If a Will was prepared during the marriage and it leaves assets to a spouse, those provisions generally remain valid even if the couple later separates. Unless the Will is formally changed, the separated spouse may still inherit according to the terms of the Will.

This can happen quite easily. After separation, people are often dealing with property settlements, parenting matters, or the emotional impact of the relationship ending. Updating a Will is not always at the top of the list.

What Changes Once a Divorce Is Finalised?

The legal position changes once a divorce becomes final.

Under succession laws in South Australia, divorce may affect certain provisions of a Will that relate to a former spouse. For example, gifts to a former spouse are revoked.

While a couple remains legally married, a spouse may still benefit under the Will.

What if There Is No Will?

If someone dies without a valid Will, their estate is distributed under the intestacy provisions of the Succession Act 2023 (SA).

In these situations, the law determines who receives the estate. A legal spouse is generally recognised as a primary beneficiary, even if the couple separated before the death of one of them.

The outcome can depend on several factors, including whether the deceased had children and whether there is also a domestic partner. In some cases, the estate may need to be shared between different eligible beneficiaries.

Can a Separated Spouse Make a Claim Against the Estate?

Under South Australian law, certain people can apply to the Court for further provision from a deceased estate if they believe adequate provision has not been made for them. This type of application is commonly known as a Family Provision Claim. A spouse, including one who was separated but not divorced, may still be eligible to bring this type of claim.

When considering these applications, the Court looks at a range of factors, including the nature of the relationship, the financial circumstances of the parties, and the size of the estate.

Separation may be relevant, but it does not automatically prevent a claim.

Your Will After Separation

Situations involving separated but not divorced inheritance often arise because estate planning documents were never updated after a relationship ended.

Reviewing a Will after separation can help ensure that it records a person’s current wishes. It can also reduce the risk of disputes between family members if something unexpected happens.

Contact Us

Separation does not always have the legal effect people expect, particularly when it comes to inheritance. Until a divorce is finalised, a spouse has rights under a Will or pursuant to the Succession Act 2023 (SA).

For anyone who has recently separated, reviewing their estate planning arrangements can be an important step in making sure their wishes are properly documented.

For more information, contact Bambrick Legal today. We offer a free, no-obligation 30-min consultation for all enquiries.

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Related Blog – How Long Does Probate Take in South Australia?

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