Separated but not divorced? Why your “ex” could inherit instead of your new partner

Dying without a Will in Victoria when you’re separated but not divorced – and in a new relationship – can leave your estate split between people you would never have chosen. The Victorian Supreme Court’s recent decision in Nicholson v Sheils [2026] VSC 18 is the first case to test Victoria’s modernised intestacy rules for people with multiple partners. It is a cautionary tale for anyone whose paperwork hasn’t caught up with their personal life – and after 16 years as a family lawyer, I have seen this scenario play out more often than you’d think.

Key takeaways

• Dying without a Will in Victoria means the Administration and Probate Act 1958 (Vic) decides who inherits.
• If you are separated but not divorced, your former spouse may still legally be your “partner”.
• A new de facto partner of at least two years is also a “partner” under the Act.
• Where there are multiple partners, they share the estate by agreement, by court order, or equally by default.
• The Supreme Court has a broad “just and equitable” discretion to reallocate the estate – but applying to court is stressful and expensive.
• A simple Will avoids all of this.

What happened?

“Chris” died without a Will in November 2023, aged 64. He left behind his partner of seven years, “Sally‑Anne”, and an “ex‑wife”, “Jiembra”, from whom he had separated 20 years earlier in 2003 but had never divorced. Chris and Jiembra had two adult children.

Three years before his death, Chris and Sally‑Anne had bought a property together as tenants in common in equal shares, intended as their eventual retirement home. After a heart attack overseas, Chris died with Sally‑Anne at his side. Without a Will, his half share did not automatically pass to her.

What happens in Victoria if you die without a Will?

In Victoria, dying without a Will means Part IA of the Administration and Probate Act 1958 (Vic) decides who gets what. Where a deceased leaves multiple partners and has children by one or more of them, the partners share the whole estate – in whatever shares they agree, or as the Court orders if a partner applies for a distribution order, or, failing either, in equal shares by default.

“Partner” includes a “spouse” (someone you are still married to) and the rather unromantically named “unregistered domestic partner” – broadly, the person you were living with on a genuine domestic basis at the time of your death, for at least two years if you had no minor children together.

At Chris’s death, Jiembra was still his spouse and Sally‑Anne was his unregistered domestic partner. Chris had two partners under the Act – a legal outcome he is unlikely to have intended.

What did the Supreme Court decide in Nicholson v Sheils?

Sally‑Anne applied to the Supreme Court for a distribution order – the Court’s broad power to allocate an intestate estate between partners in any way it considers “just and equitable”, including entirely to one partner.

Notably, this was the first time the Court had been called upon to consider an application for a distribution order since Part IA was inserted into the Act in 2017 to modernise Victoria’s intestacy regime. The old regime used a sliding scale based on how long an unregistered domestic partner had lived with the deceased – an approach the Victorian Law Reform Commission found unlikely to produce fair outcomes. The 2017 reforms replaced that formula with a flexible “just and equitable” discretion.

Justice Moore allocated the whole residuary estate (about $277,300) to Sally‑Anne. Key factors:

• Sally‑Anne and Chris were in a fully committed relationship and were financially interdependent.
• Chris and Jiembra had separated 20 years earlier and had long since severed their financial ties.
• The property was acquired during Sally‑Anne’s relationship with Chris.
• Sally‑Anne was unwell, unemployed and had no other real estate.
• Jiembra was served but chose not to appear.

The Court did weigh some factors the other way – Sally‑Anne had already received Chris’s $170,000 superannuation death benefit, and Chris and Jiembra’s children would receive nothing through their mother’s line. But the estate was so modest – less than a partner’s statutory legacy – that allocating it entirely to Sally‑Anne was, his Honour found, consistent with community standards reflected in the Act.

What should you do now?

Sally‑Anne got the outcome she wanted, but only after a stressful and expensive trip to the Supreme Court. A simple Will – or finalising a divorce decades earlier – would have avoided it. If you have separated but not divorced, or are in a new committed relationship, three things to do now:

• Make (or update) your Will.
• Finalise any outstanding property settlement and divorce.
• Review your superannuation beneficiary nominations.

How we can help

Moores’ Estates team can help you avoid the situation Chris’s family found themselves in. We assist clients to put in place clear, considered estate plans – including Wills, powers of attorney and superannuation nominations – tailored to blended families, prior relationships and complex circumstances. If a dispute has already arisen, our Estate Litigation team has specialist experience in contested wills, estates and trusts matters, including intestacy applications like Nicholson v Sheils.

Contact us

If you have any general queries about estate planning or distribution orders, please contact us.

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Jacqueline Conquest has been a solicitor for 24 years, was previously an accredited specialist in family law, and now practises exclusively in deceased estate administration and litigation, together with VCAT guardianship matters, at Moores.

_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.}

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