Question:
Dear Elaine,
I have been separated from my husband for over 14 years. I walked out on him when my two kids were very young. He was a heavy drinker and I didn’t want my children growing up around that environment. Neither of us applied for a formal separation or divorce however I did bring him to court on a few occasions for child support. He never abided by the Judges orders and after a while I just l just lost steam and gave up following him. He never paid any maintenance and he hasn’t seen either of his kids in over 8 years.
With the help of my family I was able to get a job and rebuild our lives. It was never easy but myself and the kids always managed to get by. I recently inherited a house after my mother passed away and I would like my two children to inherit this house if anything were to happen to me. Would my estranged husband be entitled to a share in the house? How can I protect against this?
J.
Answer:
Although you have lived apart from your husband for long time, you are still legally married. Your husband, as your spouse, has a legal entitlement to a share in your estate. The share that he is entitled to would depend on whether or not you leave a Will. If you pass away without a Will, your husband is entitled to two thirds of your estate and your children are entitled to one third. If you leave a valid Will, your husband is entitled to one third and your children two-thirds. It is important for you to execute a Will to clearly state your wishes and importantly nominate a guardian for your children if either is under the age of 18. As you are living apart for more than four years you should give serious consideration to applying for a divorce. A court can, under Section 18(10) of the Family Law (Divorce) Act 1996 extinguish succession rights and prevent either spouse from taking a claim against the others estate.
