IMPACT OF THE CHANGING FAMILY STRUCTURE ON ESTATE PLANNING

Robin Williams’ first wife, Valerie Velardi, who shared a son with him, has recently made a statement to the media that she knew and allowed his infidelity during the time of their marriage.  This got me thinking further about the forever evolving nature of the ‘family unit’.

When it comes to estate planning in today’s society, there is an obligation to consider your moral obligations to provide adequate and proper maintenance and support for those you leave behind, including a mistress who could potentially claim or establish that she was your de facto or domestic partner at the time of your death.  People are most shocked when I explain to them that you are also legally in a de facto or domestic relationship with another person if you have a child together under the age of 18 years, even if such child results from a single encounter.

On the 1st of November last year, the intestacy laws (i.e. where a person dies without a Will or a valid Will) in Victoria were completely overhauled.  Amongst other significant changes, the distribution of an intestate estate where a person dies with multiple partners (being a spouse, domestic partner or a registered caring partner at the time of death), was further explored to the extent that:

  • If a person leaves multiple partners but no children or multiple partners but a child or children to each of those partners, the deceased’s estate would pass entirely to the partners either in accordance with a distribution agreement negotiated between the partners, a distribution order made by the Court, or by default, equally between the partners, with no part of the estate passing directly to the child or children.
  • If, by contrast, a person leaves multiple partners but a child or children not of that partner or those partners then:
    • The partner or partners receive:
      • The personal chattels (such as jewellery, furniture) of the deceased (equally or by way of a distribution agreement between the partners or a court order);
      • The statutory legacy (currently $451,909) equally; and
      • Half of the balance of the estate equally.
    • The child or children receive:
      • The remaining half of the balance of the estate pursuant to a distribution agreement, a distribution order made by the Court, or by default, equally.

Of course, there is still scope for an eligible person to make a claim on the Estate seeking that further provision be made for his or her proper maintenance and support and therefore upset the formulaic provision referred to above.

Proper estate planning will mitigate against the potential fall out for those loved ones you leave behind.

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