Marriage is a tricky subject to navigate but none more so than when the conversation turns to the differences between death law and divorce law.
In the course of a day, I can meet couples whose feelings about marriage can span everything from 'we've been married for 5 months and already regret it' through to 'we've been married for 60 years and love each other more than ever'.
No matter how you feel about your spouse, one thing remains true: there are only two ways to legally dissolve a marriage.
Divorce or death.
What most people don't realise is that, whilst the result is the same, in the eyes of the law there is a big difference between how your assets get distributed. Unfortunately a huge number of people (incorrectly) believe they can use the basis of family court legislation to distribute their assets in their will. Setting their spouse up to fail after their death.
Let's unpack the key differences between family law (aka divorce law) and estate law (aka death law).
The Ultimate Relationship Test: Dead or Alive
Let's start at the very beginning. The easiest way to test how you're going to distribute your assets is to ask yourself if you'll be leaving your marriage dead or alive.
Alive = divorce law.
Dead = death law.
You get absolutely zero good human points if you decide you wish you'd divorced them whilst you were alive so you'll have one last crack when you're dead.
Top Tip: don't leave your estate plan in limbo during a separation. Update your will now, not "when things settle down" (you could die waiting for that to happen).
The Difference Between How Property Is Divided
In a divorce, property division is about negotiation (or litigation if things start getting spicy). Courts consider contributions, future needs, kids, assets, and who's been paying of the car loans.
In estate law, property division follows your will (if you've written one - please write one) or the laws of intestacy. There's no room for bargaining. The law follows a strict set of rules that goes along the lines of spouse, then kids, then others.
Estate law doesn't care if your first wife helped pay for the house you live in and therefore that asset should go to your first wife's children. Estate law cares about making sure the spouse you have left behind is looked after by your estate.
Who's In Charge?
In family law, it's a judge, lawyers, and (if you're lucky) a mediator who make decisions about how your assets are distributed. Your former spouse has the opportunity to put forward their claim until an agreement is reached (even if you don't like it).
In estate law, it's your executor - the person named in your will who takes charge when you die (if you don't have a will an administrator will be nominated). If your spouse has not been adequately provided for in your will they can (and probably will) make a legal claim against your estate, which can delay distribution of your assets and finalising your estate. And yes, again, it sets your family up to fight (and often fail).
Top Tip: good humans don't try to be in charge from the grave.
Here's One I Prepared Earlier
There's one scenario I see play out time after time, and it goes like this (obviously names and specific details have been changed):
Karen and Dave have been married to each other for 15 years.
Thirty years ago Karen was married to Peter. She has two adult children.
Dave was never married before. He has two adult children he sees from time to time.
Dave doesn't want Karen's kids to inherit the assets he believes should go to his children, so he writes a will that gifts the home they share (which is in his name) and some other assets to his children.
Karen will get his gold watch and any assets they held in joint names.
Dave dies.
Karen is now facing life without her husband, no longer has his income, he has no superannuation or life insurance, and the house she has lived in for 15-years has been promised to her step-children who want to sell it as soon as possible (because let's face it who doesn't want a bit of extra cash to help pay the grocery bill).
Karen is sad and scared.
She doesn't get to communicate with Dave. She can't tell him that it will be impossible to live on their savings. She can't negotiate. They can't agree on a settlement together.
So Karen goes to a lawyer and starts the process of applying for inadequate family provision - you know, so she's not left living in her car or her daughter's spare room.
Karen didn't ask for her marriage to end. Which means Dave had an obligation to care for her under the succession act (death law).
If I'd had the chance to talk to Dave before he died, I'd tell him that "till death do us part" actually means being kind and looking after your spouse AFTER you die.
Not just until the minute your heart stops beating.
Death and divorce are not the same.
...
If, like Dave, you've used divorce law to fashion your will, chances are very high you're setting your family up to fail.
Don't be like Dave.
Do yourself a favour and make the time to meet with a lawyer and understand your obligations to your spouse so your family isn't left fighting (or frightened) after you die.
And if you've been divorced via a will, I would love to help you find a resolution calmly, compassionately, and with the least collateral damage.