Introduction
Q1: If my ex dies while our property case is still going, does the claim just disappear?
A: No. The property case does not end when a party dies. The deceased's executor or administrator can apply to take their place and continue the proceedings. Reference: Hullet & Benton [2022] FedCFamC1A 13
Q2: Can my ex's children from a previous marriage jump into our property case?
A: Yes, if they are appointed as executor of the estate. The executor steps into the deceased's shoes and can push the property settlement forward, even if the surviving spouse wants the case dropped. Reference: Hansen & Peel [2023] FedCFamC1F 400
Q3: What if my ex dies before I even file for property settlement?
A: You cannot start a new property settlement case under the Family Law Act after your ex dies. Your only option is a family provision claim against the estate under state law. Legal basis: Section 79(8) of the Family Law Act 1975
What happens to a property settlement claim when a party dies?
The claim survives. Section 79(8) of the Family Law Act 1975 allows the court to substitute the deceased party's legal personal representative so the case can continue.
But there is one critical condition. The proceedings must already be filed before the death. If no application has been lodged with the court, the Family Law Act cannot help you.
Here are the key rules:
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You cannot start a new case after death. The Full Court in In the marriage of Sims (1981) FLC 91-072 made this clear. Section 79 does not allow property proceedings to begin after a party dies. If you separated years ago and never filed, you are out of time.
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Filing is enough. You do not need to have served the other party. In Mason and Hannaford (1994) FLC 92-446, the court held that lodging the application with the court is sufficient to keep the case alive, even if the other party was never formally served before they died.
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The proceedings are suspended, not ended. Once a party dies, no further steps can be taken until the legal personal representative is formally substituted. In Strelys and Strelys: Lukaitis (Executor) (1988) FLC 91-961, the court confirmed that substitution must happen before any procedural steps can continue.
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The court still decides on the merits. After substitution, the court makes orders that are just and equitable. The case is not rubber-stamped or automatically decided in anyone's favour.
"Once jurisdiction exists and is regularly invoked... the proceeding comprises the matrimonial cause and is not determined until discretionary power under Pt VIII of the Act is exhausted."
The court treats the property settlement as an ongoing legal matter. The death of a party does not take away the court's power. The case stays open until the court makes a final decision.
Core Point: A property settlement claim survives the death of a party, but only if the application was filed before death. The executor or administrator can step in to continue.
Why does it matter whether there is a will or not?
It changes everything about speed, control, and who ends up fighting over the assets. Whether the deceased left a will determines who takes charge, how fast they can act, and whether additional court battles erupt.
When someone dies with a will, they have named an executor. That executor can apply for a grant of probate and then seek substitution into the family law case relatively quickly. The process is straightforward because there is a named person with clear authority.
When someone dies without a will (intestate), nobody has automatic authority. A family member must apply for letters of administration from the state or territory Supreme Court. This takes longer. Multiple family members may compete for the role. And until someone is appointed as administrator, the family law case sits frozen.
Here is what can go wrong if you do not understand this:
- The family law case stalls for months. Without a legal personal representative, no steps can be taken. If the deceased died intestate, the delay can stretch from weeks to many months while family members sort out who will administer the estate.
- You face two lawsuits at once. The deceased's children from a prior relationship may file a family provision claim in the state Supreme Court while the family law property settlement continues in the Federal Circuit and Family Court. You end up fighting on two fronts.
- The outcome changes because the deceased has no future needs. When a party dies, the court can no longer consider their future needs (housing, income, health). This shifts how the property pool is divided.
The couple separated after a long marriage. The wife filed a property settlement application. She died before the case was decided. Her legal personal representative was substituted and continued the proceedings on behalf of the estate.
The surviving husband argued he should receive a future needs adjustment because he still needed to house and support himself. The estate argued that the beneficiaries of the wife's will also had future needs that the court should consider.
Outcome: The court rejected the estate's argument. It held that the future needs of beneficiaries under the will are not a relevant consideration under section 75(2). Only the parties' own needs matter. Since the wife was deceased, she had no future needs. The court awarded the husband a 7.5% adjustment in his favour.
Key Point: Whether there is a will determines who controls the case and how fast it moves. A will means a named executor who can act quickly. No will means delays, family disputes, and the risk of being caught in two separate lawsuits at the same time.
How does an executor or administrator get substituted into the proceedings?
The process depends on three scenarios: the deceased left a will, the deceased left no will, or both family law and estate proceedings are running at the same time. Each one has its own complications.
Scenario 1: The deceased left a will
This is the most straightforward path. The executor named in the will applies for a grant of probate from the state or territory Supreme Court. Once probate is granted, the executor applies to the Federal Circuit and Family Court to be substituted as a party under section 79(8) and rule 3.19 of the Family Law Rules 2021.
The executor needs to file:
- A copy of the death certificate
- The grant of probate
- An application to be substituted as a party
- Any evidence about the current state of the property pool
"The proceeding for property settlement could not then be summarily dismissed without a hearing on the merits when one party still pressed for orders to be made under Pt VIII of the Act."
The husband and wife had filed a joint application for consent orders to divide their property. Before the court made the orders, the husband died. The wife then withdrew her consent, arguing that without mutual agreement, the court had no choice but to dismiss the entire case.
The husband's executor disagreed. The executor applied to be substituted and argued that the property settlement should proceed on its merits.
The wife appealed, claiming the court could only make consent orders or dismiss. The Full Court rejected her argument. It held that the wife was confusing the specific application (for consent orders) with the broader proceeding (the property settlement). Even though the consent order application had to be refused because consent was withdrawn, the property case itself remained alive. The executor had every right to pursue it.
Outcome: The wife's appeal was dismissed. She was ordered to pay $15,000 in costs. The executor was permitted to continue the property settlement on behalf of the husband's estate.
Practical steps if you are the executor:
- Apply for a grant of probate as soon as possible
- Notify the Family Court of the death and apply for substitution under rule 3.19
- Gather up-to-date valuations of all assets in the property pool
- Be aware that the court will not consider the deceased's future needs when dividing property
Scenario 2: No will
When someone dies without a will, there is no executor. A family member must apply to the state or territory Supreme Court for letters of administration. This creates an administrator who has similar powers to an executor, but the appointment process takes longer.
The complications multiply in second-marriage families. The deceased may have children from a first marriage and a current spouse. Both may want to be the administrator. Both may have competing interests. The children may want to maximise the estate's share. The surviving spouse may want a larger property settlement.
Until the administrator is appointed, the family law case is frozen. No one can apply for substitution without letters of administration. This delay can last months.
Justice Le Poer Trench examined what happens when both parties to a family law property settlement die before the case is decided. This tested the outer limits of section 79(8). The question was whether the court retains jurisdiction when there is no surviving party at all.
Both estates needed to appoint legal personal representatives before the case could continue. This doubled the administrative burden and delay.
Outcome: The court confirmed that section 79(8) applies even when both parties have died, provided the proceedings were filed before the deaths occurred. The legal personal representatives of both estates were substituted to continue the case.
Practical steps if the deceased had no will:
- Determine who is eligible to apply for letters of administration (usually the surviving spouse or adult children)
- Apply to the Supreme Court promptly. Every week of delay is a week the family law case cannot move
- Be prepared for disputes among family members about who should be the administrator
- If you are the surviving spouse and also the most likely administrator, be aware you may end up on both sides of the family law case. Get independent legal advice immediately
Scenario 3: Concurrent family law and estate proceedings
This is the most complex situation and it happens often in second-marriage families. The surviving spouse is fighting a property settlement in the Family Court. At the same time, the deceased's children from a first marriage file a family provision claim in the state Supreme Court against the estate. Two courts. Two sets of lawyers. Two competing claims on the same pool of assets.
The family law court and the estate court apply different rules. Under section 79 of the Family Law Act, the court divides property based on contributions and future needs. Under state succession law, the court asks whether the deceased made adequate provision for eligible claimants.
These two processes can produce conflicting results. The family law court might give the surviving spouse 60% of the pool. The state court might then decide the deceased's children deserve a larger share of what remains. Coordinating the two proceedings is critical.
| Comparison | Hullet & Benton [2022] | Hansen & Peel [2023] |
|---|---|---|
| Relationship | Married couple with consent orders pending | Long marriage, wife filed property application |
| What happened | Husband died before consent orders were made. Wife withdrew consent to block the case | Wife died during proceedings. Personal representative substituted |
| Who continued the case | Husband's executor | Wife's legal personal representative |
| Future needs of the deceased | Not yet determined (case sent back for hearing on merits) | No future needs (deceased). Husband received 7.5% adjustment |
| Outcome | Executor permitted to continue. Wife paid $15,000 in costs | Court rejected argument that beneficiaries' needs count under s75(2) |
The key difference: in Hullet & Benton, the executor fought to keep the case alive against a surviving spouse who wanted it dead. In Hansen & Peel, the personal representative continued the case but the death itself changed the mathematics of the property split because the deceased no longer had future needs.
Practical steps if you face concurrent proceedings:
- Get a lawyer who understands both family law and estate law. These are different areas and most lawyers only practise one
- A family law property order takes priority over a will. The family law case usually needs to be resolved first
- If you are a child of the deceased from a prior relationship, understand that your family provision claim depends on what is left in the estate after the family law case is decided
- Act fast. Family provision claims have strict time limits, usually 12 months from the grant of probate in most states
For a broader look at how property settlement outcomes can change based on court discretion, see Can the Court Refuse to Split Property in an Australian Divorce?. If the property settlement decision has already been made and you disagree, see Can You Appeal a Family Court Property Decision in Australia?. For cases where delays in settlement cause financial losses, see Ex Delaying Property Sale? How to Recover Your Losses.
Summary
Filing before death is everything. If no application is on foot when a party dies, the surviving spouse cannot start a new property case under the Family Law Act. The only option is a family provision claim under state law.
A will speeds things up. A named executor can apply for probate and seek substitution quickly. Without a will, the process stalls while family members apply for letters of administration.
Death changes the maths. The court cannot give the deceased a future needs adjustment. This typically shifts the balance in the surviving party's favour.
Second marriages create battlefields. The surviving spouse and the deceased's children from a prior relationship often end up fighting in two courts at once.
The executor has real power. As Hullet & Benton shows, an executor can push a property settlement forward even when the surviving spouse wants the case dismissed.
