Pre-Nup – Left Out Of The Will

If I have a Pre-Nup with my husband and he doesn’t have a Will, does that mean I will be “left out of the Will” if anything happens to him?

In Australia a pre-nuptial agreement is dealt with under the Family Law Act and referred to as a “Binding Financial Agreement.” These agreements can be made before marriage, during marriage and after the marriage is over. The purpose of a Binding Financial Agreement is, to set out the division of property and assets of the parties, in the event that the marriage ends in divorce.

Binding Financial Agreements are becoming more common in recent years, with the increase in the complexity of family arrangements. For example, couples who have children from a previous relationship may wish to protect their assets so that they can be inherited by their children.

There are a large number, of formal requirements for a financial agreement to be considered, a Binding Financial Agreement by the Court, such as both parties obtaining independent legal advice, on the effect of entering into the Binding Financial Agreement.

A common clause in Binding Financial Agreements is that, each party to the Agreement agrees not to make a claim on the Estate of the other party if they die. This means that you would be unable to make a Family Provision claim against your husband’s Estate, if you believe that he has not made adequate provision for you in his Will, for your education, maintenance and advancement in life.

However, under the Succession Act, a release agreeing not to make a Family Provision claim on a deceased Estate needs to be approved by the Court. When considering to approve such a release, the Court will consider the following:

  • Whether it was to your financial advantage to make the release;
  • Whether it was prudent for you to make the release;
  • Whether the provisions in the Binding Financial Agreement were fair and reasonable; and
  • Whether you received independent legal advice on the potential effect of the release.

In the event that your husband dies, without a Will and there is no Binding Financial Agreement, then his Estate will be distributed in accordance with the rules of Intestacy.

Under these rules you, as his spouse, are entitled to receive the whole of his Estate, if he did not have any children, or if the only children he had were with you. If he did have children with another person, then you are entitled to your husband’s personal effects, a statutory legacy of $350,000 and half of the remainder of his Estate.

You need to make sure you fully understand the possible consequences of signing a Binding Financial Agreement and the effect that this may have on any Family Provision Claim, on your husband’s Estate.

If you need advice on the effect of a Binding Financial Agreement, or pre-nup, on your ability to make a Family Provision Claim, then you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on Binding Financial Agreements and their possible impact on Family Provision Claims.  We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.

Call today for an appointment on 9221 2779 and ask about our No Win No Fee policy.