The death of a party during family law property proceedings can create complex legal issues and may significantly affect how a matter proceeds. Questions can arise about whether proceedings can continue, the role of the deceased’s estate, and how the deceased party’s interests in property should be dealt with.
In this article, we explore the effect of death on property proceedings in Australia and some of the important considerations for parties, estates and their legal representatives.
What Happens If a Party Dies During Property Settlement Proceedings?
Where property proceedings have already been filed but a party to those proceedings subsequently dies, the proceedings cannot continue in the deceased’s name. Under s79AA(8) (in relation to marriages) and s90SMA(8) (in relation to de facto relationships) of the Family Law Act 1975 (Cth), the proceedings may be continued by or against the deceased’s legal personal representative (typically the executor of the estate), who is substituted as a party in accordance with the Rules of Court.
Where a party dies before family law property proceedings have been completed, the proceedings may, in certain circumstances, be continued by or against the deceased person’s legal personal representative. The Court must first be satisfied that the relevant requirements under the Family Law Act have been met. Similar provisions apply to de facto relationships, although these are dealt with separately under the Act.
Before the proceedings can continue, the Court must be satisfied of two conditions:
- that it would have made an order had the deceased not died; and
- that it is still appropriate to make an order with respect to the property.
The death of a party may significantly affect the matters relevant to the Court’s assessment, including considerations relating to that person’s future needs. In other words, the Court must decide whether it is still fair and appropriate to make a property adjustment despite the death of one of the parties. Where both conditions are satisfied, the proceedings continue, with the deceased’s legal personal representative substituted as a party in their place — though the orders ultimately made may still differ from what would have been ordered had the party survived, since the deceased’s own future need no longer form part of the analysis.
Where both parties to the proceedings have died, separate and complex legal questions may arise regarding whether the proceedings can continue. Specific legal advice should be obtained in these circumstances.
The Impact of Death on Spousal Maintenance Orders
Death can also have significant consequences for spousal maintenance. Under the Family Law Act 1975 (Cth), a spousal maintenance order generally ceases upon the death of either the person receiving maintenance or the person required to make the payments. As a result, ongoing spousal maintenance obligations will generally not continue in the same way after a party’s death.
However, the interaction between property settlement proceedings and spousal maintenance can be complex, particularly where a party dies while proceedings are ongoing. Legal advice should therefore be obtained in relation to the specific circumstances of the matter.
Under s82(1) of the Family Law Act 1975 (Cth), a maintenance order ceases to have effect upon the death of the party being maintained — it cannot be continued against a deceased person, and this applies equally to any beneficiaries or next of kin of that spouse’s estate. In Hansen & Peel [2023] FedCFamC1F 400, the Court confirmed that the future needs of the beneficiaries under the deceased’s Will were not a relevant consideration.
What if a Party dies before Property Proceedings are commenced?
The timing of a party’s death can have significant consequences for a potential family law property claim. Where a party dies before family law property proceedings have commenced, different legal principles may apply, and the surviving person may need to consider their rights against the deceased person’s estate under the relevant succession laws.
Depending on the circumstances, this may include considering the deceased person’s Will and whether a family provision claim or another estate-related claim is available. The appropriate course of action will depend on the particular facts of the matter. In these circumstances, any property or family provision claims must instead rely on the deceased’s Will and the law of succession. For further information, see our blog ‘Understanding Inheritance Disputes’
How Does an Ongoing Property Settlement Affect the Estate?
Where family law property proceedings continue following the death of a party, the outcome of those proceedings may directly affect the assets available in the deceased person’s estate.
This can have important consequences for beneficiaries and for anyone considering making a claim against the estate, as the value and composition of the estate may change depending on the outcome of the family law proceedings.
A complication may arise where the surviving spouse or partner is also named as the executor of the deceased person’s estate. This may create a potential conflict of interest, particularly if that person is also the opposing party in the family law proceedings.
Depending on the circumstances, it may be necessary to consider whether another appropriate person should act as the legal personal representative for the purposes of the proceedings.
Should property orders be made requiring the transfer or payment of property to you, this will be handled by the executor of the estate. All Court orders are enforceable against the Estate.
This is one of several reasons it is important to keep your Will updated to reflect your current circumstances and true intentions.
Contact Us
Property settlement matters can become significantly more complex when one party dies, particularly where family law and succession law issues overlap.
If you are involved in a property settlement and have concerns about the health or circumstances of either party, it is important to obtain legal advice as soon as possible.
Our experienced family lawyers and estate lawyers at Etheringtons Solicitors in North Sydney can assist with matters involving both family law and succession law. Please do not hesitate to contact our team on 02 9963 9800 or complete our online form.