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The decision of Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased) [2015] QSC 281 is a reminder that in some jurisdictions ex-spouses can miss out altogether if family law property proceedings are not issued before death.

In this case the former spouses’ solicitors were negotiating a property settlement, which had been punctuated by delays, when the ex-husband died unexpectedly.

No family law proceedings had actually been issued and could not be after the death of the former spouse.

After some delays, which the ex-wife was able to explain to the court’s satisfaction, proceedings were brought in Queensland Supreme Court for family provision.

Under the Succession Act 1981 (Qld) s.41 and s.54A provided that a former spouse who had not remarried was entitled to receive maintenance from the deceased and could bring a family provision claim. The court determined that in order for the ex‑wife to be entitled to receive maintenance she had to have a right under contract or by court order, neither of which she had. She was therefore precluded from making a claim on her former husband’s estate.

In Victoria a former spouse is entitled to make a family provision claim under s.90A of the Administration and Probate Act 1958 (Vic) if:

  • at the time of the deceased’s death they would have been able to take proceedings under the Family Law Act 1975 (Cwlth)
  • has either not taken those proceedings or commenced but not finalised those proceedings and is now prevented from taking or finalising those proceedings.

While the decision may have been different if brought in Victoria, it is a good reminder if acting for clients in other States of the risks of not issuing proceedings in before a spouse passes away.