One issue that may arise in family law proceedings is when a party to the proceeding passes away before financial property settlement. There is a common misapprehension that the death of a party will result in the dissolution of the proceedings. Rather, there are mechanisms which can ensure that the proceedings and financial settlement are finalised so that a fair outcome can be attained for the surviving party and the deceased’s estate. However, the court can only continue proceedings. If family law proceedings have not begun before one party passes away, they cannot be commenced. The applicable law in this circumstance would be the law of estates. Furthermore, if both parties pass away after commencement of proceedings, it is not possible to continue these proceedings.

What happens when one party passes away?

If the parties were married under s79(8) of the Family Law Act or de-facto under s90SM(8), the court has discretion to continue family law proceedings, when appropriate, between the surviving party and the deceased’s estate. The proceedings will be suspended until a legal representative is appointed for the deceased’s estate.

In exercising discretion to continue proceedings, the court must determine both that they would have made such an order with respect to the property if the deceased party were alive, and that it is still appropriate to make such an order. In determining property orders, the court will assess the property at stake and the contributions of each party. Furthermore, under family provisions of state and territory intestate legislation, the court can make an order for the maintenance, education of advancement of an eligible individual who was given an inadequate provision from the deceased’s estate. The relevant legislation in NSW is Chapter 3 of the Succession Act 2006 (NSW).

Would you like to find out more?

If you would like more information on this issue, our specialist family lawyers have the knowledge and experience to assist. It is always important that you seek specialist legal advice to ensure your interests are best protected. Contact our team today.