Upon the death of a spouse the entitlements of a surviving spouse depend upon whether the deceased spouse has died testate or intestate. Where the deceased spouse dies intestate and leaves no issue, the surviving spouse is entitled to the entirety of the estate of the deceased spouse (section 67(1) Succession Act 1965). Where the deceased spouse dies intestate, leaving a spouse and children, the spouse is entitled to two-thirds of the estate (section 67(2)(a) Succession Act 1965). Where the deceased spouse dies testate, leaving a spouse and no children, the surviving spouse is entitled to one half of the estate (section 111(1) Succession Act 1965), notwithstanding the terms of the will. If a testator dies leaving a spouse and children, the spouse has a legal right to one-third of the estate (section 111(2) Succession Act 1965), notwithstanding the terms of the will.

Upon separation, either or both spouses can apply to have the succession rights of the other spouse extinguished (section 14 Family Law Act 1995). Upon divorce spouses lose their spousal status rendering the entitlements under the Succession Act 1965 no longer applicable. However following a divorce and the subsequent death of one of the (former) spouses the surviving (former) spouse can apply to the courts for a share in the estate where the court considers such an order to be appropriate and is satisfied that proper provision in the circumstances was not made for the applicant during the lifetime of the deceased spouse (section 18(1) Family Law (Divorce) Act 1996). Upon ordering the decree of divorce, or anytime thereafter prior to an application for such post-death relief, either or both spouses can seek to have this right to apply eliminated by order of the courts (section 18(10) Family Law (Divorce) Act 1996).

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