Death Before Property Settlement: What Happens to Family Law Proceedings and the Estate?

Two legal systems that meet on death

Property settlement between separated spouses and de facto partners is governed by the Commonwealth Family Law Act and is dealt with in the Federal Circuit and Family Court of Australia. Claims against a deceased person's estate in Victoria are governed by the Administration and Probate Act 1958 (Vic) and the Wills Act 1997 (Vic), and family provision claims are heard in the Supreme Court or the County Court of Victoria.

The two systems apply different tests. A family law property order looks at the parties' property, contributions and future circumstances, and whether an order is just and equitable. A family provision claim asks whether the deceased had a moral duty to provide for the applicant and whether the estate fails to make adequate provision for their proper maintenance and support. Which system is available, and whether both are, shapes the strategy.

If property proceedings had already started

Since the property amendments made by the Family Law Amendment Act 2024 (Cth) commenced on 10 June 2025, the death provisions are in section 79AA(8) for marriages and section 90SMA(8) for de facto relationships. Older cases and articles refer to them as sections 79(8) and 90SM(8). Under item 68 of Schedule 1 to the amending Act, the new provisions apply to proceedings started on or after 10 June 2025, and to earlier proceedings that had not been finally determined, unless a final hearing had already begun before that date.

If a party dies before property settlement proceedings are completed:

• the proceedings may be continued by or against the deceased party's legal personal representative, and the rules of court may provide for that person to be substituted as a party;
• the Court may make an order it could have made if the party had not died, but only if the two conditions explained below are met; and
• any order made is enforceable on behalf of, or against, the estate.

For de facto relationships, section 90SMA(8) applies where the party dies after the relationship has broken down. Rule 3.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 applies to financial and property proceedings. It requires the other party, or the deceased's legal personal representative, to ask the Court for procedural orders about the future conduct of the case, and allows the Court to substitute the legal personal representative as a party. Delay in identifying or appointing that representative can therefore delay the case.

Parenting proceedings involving the deceased parent do not continue in the same way, and any arrangements for the children will need to be considered afresh.

The test for a property order after death

In continuing proceedings, the Court may make a property order only if it is of the opinion that:

1. it would have made an order with respect to property if the deceased party had not died; and
2. it is still appropriate to make an order with respect to property, despite the death.

In addition, section 79AA(1) (and section 90SMA(1) for de facto relationships) provides that the Court must not make a property order unless it is satisfied that, in all the circumstances, it is just and equitable to do so.

The leading authority is Stanford v Stanford [2012] HCA 52. The Stanfords had been married since 1971. In December 2008 Mrs Stanford had a stroke and moved into full-time residential care. The couple therefore lived apart involuntarily: Mr Stanford stayed in the home and continued to provide for her care. In 2009, one of her daughters, as her case guardian, applied for a property order. A magistrate ordered Mr Stanford to pay her $612,931. Mr Stanford appealed. After the Full Court of the Family Court had heard the appeal but before it delivered judgment, Mrs Stanford died and her daughters continued the case as her legal personal representatives.

The High Court allowed Mr Stanford's appeal and dismissed the application. It held that the Court must first be satisfied that it is just and equitable to make a property order, then required by section 79(2) and now stated in section 79AA(1). The fact that property is held unequally does not of itself make an order just and equitable. While Mrs Stanford was alive her needs were being met, and there was no basis for concluding that an order would have been made had she not died.

Stanford concerned an intact marriage separated by illness, not a conventional separation. Where a relationship has clearly broken down, the just and equitable requirement will usually be easier to satisfy, but each continued case turns on its own facts.

If no proceedings had started

The continuation provisions apply only to proceedings already on foot. If the parties had separated but no application had been filed, the surviving partner generally cannot start Family Law Act property proceedings against the estate. Their position then depends on Victorian succession law.

Whether the survivor could have started proceedings before the death depends partly on the time limits in section 44 of the Family Law Act. The limits operate differently depending on the relationship:

• Married but not divorced. The 12-month limit runs only from the date a divorce order takes effect (or a nullity decree is made). A separated spouse who is still married is not out of time.
• Divorced. Property proceedings must generally be started within 12 months after the divorce took effect, unless both parties consent or the Court grants leave.
• De facto. An application must generally be made within two years after the relationship ended, unless both parties consent or the Court grants leave. The usual Family Law Act threshold requirements for de facto relationships must also be met.

Our guide to time limits for property settlement explains these rules in more detail.

Agreements, orders and maintenance

• Orders already made. Under section 79AA(1A) (marriages) and section 90SMA(2) (de facto relationships), a property order may be enforced on behalf of, or against, the estate of a party who has died.
• Binding financial agreements. Under section 90H (marriages) and section 90UK (de facto relationships), a financial agreement that is binding on the parties continues to operate despite the death of a party, and operates in favour of and binds that party's legal personal representative. Whether the agreement was in fact binding can still be disputed.
• An agreement in principle. An unsigned agreement, a negotiated offer or a mediation outcome that was never made into orders or a binding agreement does not have the same effect, although it may still be important evidence.
• Spousal maintenance. Under section 82 of the Family Law Act, a spousal maintenance order generally ceases to have effect on the death of either party, subject to a limited exception in section 82(3): an order made before section 38 of the Family Law Amendment Act 1983 commenced, and expressed to continue for the recipient's life or for a period that had not expired, survives the payer's death and binds the payer's legal personal representative. Arrears already due when the order ceased can still be recovered.

See our guides on binding financial agreements, setting aside property settlement orders and spousal maintenance.

Who can claim against the estate

Separation does not revoke a Will. Section 14 of the Wills Act revokes gifts to a spouse, and their appointment as executor, only on divorce or annulment. Gifts to a former de facto partner are not automatically revoked when the relationship ends. A survivor who is a beneficiary under the Will may therefore still inherit.

If the Will or the intestacy rules do not adequately provide for the survivor, they may bring a family provision claim only if they are an eligible person under section 90 of the Administration and Probate Act. The relevant categories are:

Spouse or domestic partner at death: section 90(a)

• Spouse. Section 3 defines a spouse as a person married to the deceased at the time of death. A separated but undivorced spouse qualifies.
• Registered domestic partner. A person in a registered domestic relationship with the deceased at death, under the Relationships Act 2008 (Vic), qualifies. Separation does not end a registration: it is revoked by death or marriage, or on an application to the Registrar that takes effect after a 90-day period, or by a court or VCAT. If the registration had not been revoked, a separated registered partner remains a domestic partner.
• Unregistered domestic partner. The person must have been living with the deceased at the time of death as a couple on a genuine domestic basis, and either have lived together continuously for at least two years immediately before the death or be the parent of the deceased's child who was under 18 at the death. A separated unregistered partner will therefore usually not qualify.

Former spouse or former domestic partner: section 90(e)

A former spouse or former domestic partner is eligible if, at the time of death, they would have been able to take Family Law Act proceedings, had either not taken them or commenced but not finalised them, and are now prevented from taking or finalising them because of the death. This is the main route for a divorced spouse or a separated de facto partner.

One question is unresolved. Where proceedings had commenced and can be continued under section 79AA(8) or 90SMA(8), it is arguable that the survivor is not "prevented" from finalising them, so section 90(e)(iii) may not be satisfied. We have not identified a Victorian decision that settles this point, and advice on the specific facts is needed.

Household member: section 90(k)

A person is eligible under section 90(k) if, at the time of death, they were a member of the deceased's household, or had been in the past and would have been likely in the near future, had the deceased not died, to again become one. A separated partner who was likely to reconcile might fit this category in a narrow case. Under section 91(2)(b), a claimant in this category must also show they were wholly or partly dependent on the deceased for their proper maintenance and support, and any provision must be proportionate to that dependency.

Eligibility is not success

For every eligible person, the Court must be satisfied that the deceased had a moral duty to provide for them and that the estate fails to make adequate provision for their proper maintenance and support. The relationship, the separation, contributions, financial resources and needs, and the claims of others are all relevant. Our guides to family provision claims in Victoria and defending a family provision claim explain the test from each side.

If there is no Will

Under Part IA of the Administration and Probate Act, a "partner" for intestacy means a spouse, domestic partner or registered caring partner at the time of death. A separated but undivorced spouse is still a partner. A new domestic partner who meets the definition is also a partner. Separated people in blended families are therefore often in the situations the rules for multiple partners and step-families address:

• One partner, no children: the partner takes the whole residuary estate (section 70J).
• One partner, all children also the partner's: the partner takes the whole residuary estate (section 70K).
• One partner, and a child who is not the partner's: the partner takes the personal chattels, the partner's statutory legacy with interest, and half of the balance; the children share the other half (section 70L). If the residuary estate is worth no more than the statutory legacy, the partner takes everything. The statutory legacy is indexed annually and published in the Government Gazette.
• More than one partner: the partners' entitlement is shared under a distribution agreement between them, a Court distribution order, or otherwise in equal shares (sections 70Z to 70ZE). Where there are children who are not children of any of the partners, the partners share the chattels, the statutory legacy and half of the balance, and the children take the other half (section 70ZB).

These outcomes can be very different from what a separated person intended. Our guide to dying without a Will in Victoria explains the intestacy rules more broadly.

Superannuation and jointly owned property

Victoria, unlike New South Wales, has no "notional estate" rules allowing the Court to treat property outside the estate as available for a family provision order. A Victorian claim is generally limited to the deceased's estate. Two common assets often fall outside it:

• Superannuation. Death benefits are paid by the fund trustee under the fund rules and superannuation law, not under the Will. A benefit paid directly to a dependant is not part of the estate. A benefit paid to the legal personal representative becomes part of the estate. A spouse who is still legally married can remain a superannuation dependant after separation.
• Joint tenancy. Property held as joint tenants ordinarily passes to the surviving joint tenant by survivorship and does not form part of the estate, unless the joint tenancy was severed before the death.

The family law pool is different. In a continuing family law case, the Court considers the parties' property and superannuation interests as a whole, so these assets may still be relevant to whether an order is just and equitable and to what order is made. How that applies after a death is complex and needs advice. See our guides to superannuation death benefit disputes and de facto property claims.

Executors, administrators and authority

An executor's authority comes from the Will and arises on death, but a grant of probate is ordinarily needed to prove that authority to third parties and courts. An administrator has authority only once the Supreme Court grants letters of administration. In practice, the Family Court will usually expect evidence of who the legal personal representative is before substituting them as a party, so delay in obtaining a grant can delay a continuing case.

The person entitled to represent the estate may be in a conflict:

• a surviving spouse named as executor in an old Will may also be the opposing party in the family law case;
• an executor appointed under a new Will may be defending a claim by the surviving partner; and
• beneficiaries may disagree about whether to continue or settle the case.

An executor must act in the interests of the estate and its beneficiaries, not their own. If a conflict cannot be managed, independent advice is needed and the Supreme Court may have to appoint a different representative. Our guide to executor duties in Victoria explains the obligations involved.

Protecting the position after the death

Practical steps may include:

• notifying the estate's representative and the other side's lawyers of any continuing proceedings;
• where a family law case can continue but its outcome is uncertain, considering a protective family provision application within six months of the grant, so that the estate claim is not lost if the family law case fails;
• lodging a probate caveat where there is a genuine dispute about the Will or who should administer the estate, as explained in our guide to probate caveats;
• asking the estate not to distribute while a claim is being considered or made; and
• in continuing family law proceedings, seeking orders under section 106B of the Family Law Act, which allows the Court, in proceedings under that Act, to set aside or restrain a disposition made to defeat an existing or anticipated order, or that is likely to defeat one. It is not a stand-alone remedy where no family law proceedings exist.

Running both claims together raises questions of costs, inconsistent outcomes and which court should decide first. Those questions need coordinated advice.

Time limits

• Family provision: within six months after the grant of probate or letters of administration (section 99). The Court may extend time, but an extension application must be made before final distribution, and it does not disturb distributions already made. See our guide to family provision time limits.
• Family law proceedings before the death: no limit while the parties remain married; 12 months after a divorce takes effect; or two years after a de facto relationship ends, subject to consent or leave.
• Continuing proceedings: the Court will expect prompt steps under rule 3.19 to obtain procedural orders and substitute a legal personal representative.

Because the family law and estate pathways interact, advice is best obtained from lawyers who can consider both. Parke Lawyers' family law and estate litigation teams work together on these matters. If you are separated and want to plan ahead, see our guide to the property settlement process and speak with our Wills and estate planning team about updating your documents.

Frequently Asked Questions