That is a very interesting question and one that depends on several things.
In NSW, an Act of Parliament called the Succession Act, 2006, sets out a Government formula as to who may be entitled to the assets in a deceased person’s estate if they die without leaving a Will.
If your spouse dies without leaving a Will and either leaves children of your own relationship with the deceased, or leaves no children at all, then you will be entitled to the entirety of his/her estate.
However, if your spouse dies without leaving a Will but leaves children from a previous relationship, then that is quite a different story.
If your spouse dies leaving children that are not yours, you will be entitled to receive what is referred to as a spouses statutory legacy. A spouses statutory legacy is a portion of a deceased estate which has been increased over time by CPI increases. Because the figure changes with annual CPI increases, the amount due to you has to be calculated as at the date of death.
The spousal legacy is $350,000.00 as at 2006 and with annual CPI increases, is about $477,000 as at July 2021.
Once it is determined how much you will receive from the estate by way of spouses statutory legacy, you will also be entitled to one half of the residue, or balance remaining, in the estate.
Finally, after those payments from the estate, the children of your former spouse will then be entitled to receive the remaining half share of the residuary estate divided equally between them.
Wills & Estates can be very complex and you should always seek legal advice in relation to preparing your Will. An incorrectly completed Will could end up being deemed to be invalid.
It is always best to make a Will so that your estate is distributed as you had wished.
Leading law firms committed to helping clients cost-effectively will have a range of fixed- priced Initial Consultations to suit most people’s needs in quickly learning what their options are.
At Brazel Moore Lawyers we have an experienced team who can answer your questions and put you on the right track.
If you need help with making a Will, call Geoff Brazel, Wills & Estates Lawyer on 4324 7699.