It is a common scenario in families where a spouse dies unexpectedly, leaving a single parent and children. The surviving parent remarries or enters into a de facto relationship and they acquire assets jointly over a period of time. If the new spouse or partner also has children from a previous marriage, this can cause tension amongst children from the respective families when, inevitably, one of the new couple dies.
It is always a difficult situation for the surviving spouse to keep everyone happy. Usually, the children of the spouse that has died has some expectancy around their inheritance from their deceased parent. The children of the surviving spouse also have an expectation regarding inheritance from their parent. Usually, couples own property as joint tenants. Under a joint tenancy, the ownership in the house passes to the surviving joint tenant upon death without reference to the Will of the deceased. The same principle applies to joint back accounts – the surviving joint account owner literally “inherits” the contents of the bank account without reference to the Will of the deceased.
The outcome is that the surviving spouse effectively “inherits” the jointly owned assets of the couple and it is entirely up to him or her as to what they wish to do with those assets in their own Will. Frequently the surviving spouse makes provision for their own children but effectively cuts out the entitlements of the family of the deceased spouse.
There are slightly different laws in New South Wales than in Queensland regarding this issue but it is something which is a challenge to “Brady Bunch” families. The solution is to ensure that couples obtain appropriate estate planning advice from an experienced lawyer in this area so that steps can be taken to ensure that there is an equal distribution of the assets to the respective families of the couple. This can be achieved through a fairly simply process of owning the land as tenants in common in equal shares and creating trusts to protect the assets.
Further information is also available on our Wills and Estates pages.