Spouse passing away whilst separated – Inheritance and family provision

Yukio Hayashi    21 Sep 2018

Q: I separated from my husband of 25 years. Between my husband and me, we have a son, now an adult, who is currently working. My husband and I thought it would be a temporary separation and did not divide our assets. The apartment I currently live in and an apartment that is an investment property in Tokyo is under my husband’s name. My husband passed away last week. He did not leave a will. When my ex-husband passed away, he was living with his girlfriend who has a child. In this case, what happens to the distribution of marital assets and the right to inheritance?


A: If the deceased and his girlfriend are legally recognised as de facto Partners, the girlfriend has the right to inherit the deceased's estate. According to the laws of NSW, if they have been living like a couple for more than two years, the relationship will be legally recognised as a de facto relationship. A person who claims the question of ‘have they lived together like a couple’ that has the duty to prove it. For example, each person has a dwelling, and if they only spend 2,3 days together, they cannot be considered to be a marriage relationship. In this case, assuming the girlfriend was in a marital relationship with the deceased, even if the cohabitation period was short, she has a right to inherit half of the deceased’s estate as mentioned under the Succession Act. The remaining inheritance will go to you. And subsequently in this case, your son does not have any inheritance rights.


You may feel that it is unfair that the girlfriend has a right to half the deceased’s estate when she has only lived with the deceased for a period of 3 years compared to your 25 years of marriage. If you disapprove of this result, you can claim a right under the Family Provision.  Family Provision refers to the right of succession of the deceased’s dependent family, not only the spouse but individuals that had a marriage-like relationship and those who have no kinship with the deceased (Dependent). This right cannot be revoked by a will. Therefore, your son can also claim this right. Additionally, if the step-child is dependent on the deceased, this right can be asserted. If the parties do not agree on the asset distribution, the court will ultimately decide to whom and to what extent the Family Provision will be granted by taking into account all relevant circumstances. 

Subsequently, you do not have the right to distribute marital assets as the procedure of distribution was not completed before the deceased’s passing.

Japanese laws apply to the inheritance of apartments that are in the name of the deceased in Japan. From what I understand, as Japan is family-oriented, no inheritance rights are available to those who are not family members and those who are not recognised. Therefore, under Japanese law, with regards to property in Japan, you and your son have 50% inheritance rights.

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Yukio Hayashi

Yukio Hayashi

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