What happens if a party dies during family law proceedings?

The death of a party during family law proceedings can create significant uncertainty for the surviving spouse, children and other family members. The impact will depend on whether the matter involves parenting issues, property settlement, maintenance or superannuation.

What happens to property proceedings?

If a party dies while property proceedings are underway, the matter does not automatically end. In many cases, the deceased party’s estate may need to become involved in the proceedings.

The Court may need to determine issues such as:

• the property interests of the parties at the date of death;
• whether a property settlement should be adjusted;
• whether assets should be transferred to or from the estate; and
• the rights of the surviving spouse or partner.

The outcome may depend on whether final property orders had already been made before the person’s death.

If a property settlement had been finalised before death, the position is generally different because the rights of the parties have already been determined.

Does the estate step into the proceedings?

The executor or administrator of the deceased person’s estate may need to be involved in the proceedings to represent the deceased person’s interests.

The estate may include assets such as:

• real property;
• bank accounts;
• investments;
• business interests; and
• other financial resources.

The Court will need to balance the rights of the surviving party with the interests of the estate and any beneficiaries under the deceased person’s Will.

What happens to parenting arrangements?

Parenting proceedings are treated differently because parenting orders are focused on the best interests of the child.

If a parent dies, any existing parenting orders relating to that parent’s time with the child will generally no longer operate in the same way.

The Court may need to consider:

• where the child should live;
• who should have parental responsibility;
• whether another family member should be involved in the child’s care; and
• whether arrangements should be made with grandparents or other significant people in the child’s life.

The death of a parent does not automatically mean another person obtains parental responsibility. In some circumstances, a person may need to apply to the Court for appropriate orders.

What if the parties were separated but not divorced?

A person may still be legally considered a spouse for certain purposes even if the parties have separated, unless the divorce has been finalised or other circumstances apply.

This is particularly important in relation to:

• superannuation death benefits;
• estate claims; and
• inheritance rights.

Separation alone does not necessarily remove all legal rights between former partners.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our family lawyers about your specific circumstances.

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