Prenups & Estate Claims


Do you have assets that you want to protect going into a relationship?

The division of property in the event of separation (for people who are either married or in a de facto relationship) is ordinarily covered by the Family Law Act 1975 and the Family and Federal Circuit Courts have the power to determine disputes arising out of these matters. The Court’s power can be ousted where the parties have entered into a Financial Agreement (also known as ‘a prenup’). The law says that where all of your property has been dealt with in a prenup, the Court cannot make an Order about it.

How great is that?…You can protect all of the property you have now in the event that you and your partner separate in the future. But what if you pass away?

A prenup only deals with your property in the event of separation, and death is not considered to be a separating event. Death and separation are two different events that require documents dealing with different laws to be in place.

The distribution of property in the event of your death is determined largely by your Will. It is important to know what does and doesn’t form part of your Estate as certain assets will not pass through your Will. This may include your superannuation, as well as jointly held real estate and bank accounts.

It is also important for you to be advised about how to best mitigate a claim being made by your partner over your Will in the event of your death.

If you are wanting to talk to someone about succession planning for your wealth and/or protecting your assets, have a chat to us about what strategies will be best for you.

Courtney Mullen

Courtney Mullen is a Family and Estates Lawyer at Farrar Gesini Dunn, Canberra Office.