Salt in the wound – your spouse’s lover may also steal your inheritance

It is an unpopular fact of life that not all committed relationships are monogamous. If you are involved in a love triangle, you should be aware that your spouse’s lover could make a claim upon your spouse’s estate.

How is this possible?

If there is no will – intestacy rules recognise multiple spouses

If your spouse dies intestate (without a will), you may have a real problem. However, section 123 of the Succession Act provides that where the deceased leaves more than one spouse, the spouses will both inherit the estate between them. The two spouses must then make a written agreement as to the distribution of the estate. If they can’t agree, the courts will intervene.

So when does a ‘lover’ become a spouse? The Succession Act’s definition of spouse includes someone with whom the deceased was in a domestic partnership immediately before the death. A domestic partnership is a live-in de facto relationship that has continued for at least 2 years, or has resulted in the birth of a child.

As an example: Gary and Anna were married. Anna had just found out about Gary’s three year affair with Nicola and told Gary to move out. Gary and Nicola started renting a unit together, but Gary was killed in a traffic accident a few weeks later.

In this scenario, Gary had two spouses when he died. If Gary had no will, Nicola could inherit from his estate.

If there is a will – watch out for exposure to family provision claims

If there is a valid will, even if your spouse leaves nothing for the other man or woman, a live-in de facto partner like Nicola could make a claim under family provision laws. This is where a person makes a claim that the estate should provide for their maintenance, education or advancement in life. In Morgan v Bohm [2013] NSWSC 145, the deceased’s former mistress received a legacy of $225,000 from his estate – despite the fact that their three year relationship had ended 11 years ago! There is a long list of factors the court can take into account when determining whether someone is eligible for provision. The main consideration in this case seemed to be that the widow had plenty of money whereas the mistress was unemployed and lived modestly.

What can I do?

The best way to avoid ugly court battles is to make sure you and your spouse have wills in place. This will prevent messy intestacy issues, but there is no realistic way to exclude someone from eligibility to apply for family provision. You should seek legal advice immediately if you find yourself in this unfortunate situation.

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