Family law and succession law were once considered entirely separate disciplines. Succession law practitioners drafted wills, handled contentious estate administration, and advised on will-making and estate planning; family lawyers handled separation and divorce settlements. These practices rarely overlapped.
Today, clients can present issues that impact both family law settlements and estate planning. Relationships are complicated by blended families, second marriages and de facto relationships, grown-up dependent children and financial agreements, all of which combine to make clients' expectations complex.
When matters flow from one area to another, practitioners who are aware of the crossover can spot the risk and prepare.
Family and succession law: historically separate practices
The concepts of family law and succession law have historically been viewed as separate.
One governs relationships while you are alive, and the breakdown of these relationships. The other comes into play after death and determines how your estate is distributed and who is responsible for administering it.
In today’s practice, they are no longer viewed as entirely separate spheres of practice. Clients often present matters that require consideration of both family law and succession law implications.
Although the matters may start in one area, they will often impact the other at some stage.
Should clients separate in their second marriage, there may be arguments that property acquired during the relationship belongs solely to them and not to their new partner. This affects not only their family law matter but also the client's estate and intended beneficiaries.
This is where many practitioners can miss the crossover and give sound advice from a family law perspective, but which may have unintended consequences from a succession law perspective had they considered the full circumstances.
Changes in circumstances are also prevalent in estate planning matters. Clients enter into new relationships or marriages and thereafter execute new Wills. They may fail to consider how the new Will interacts with any prior family law settlement.
By staying up to date with both family and succession law, you can provide better-coordinated advice and ultimately better serve your client.
Client expectations and outcomes
The reality is that clients do not compartmentalise their family and estate matters. They have lived with the complexities of their blended families and financial affairs and expect you to be just as aware of how the two areas of law impact upon each other.
They expect you to be able to guide them through their matter focussing on not only the immediate outcome but also the longer-term considerations. If you focus solely on the family law aspect, you may well advise on an optimal property settlement but not take into account how those assets will ultimately be distributed on death. That could leave your client exposed to unnecessary tax or even a family provision claim from a dependent who was left nothing under the Will.
Conversely, if you focus solely on the estate planning aspect you may draft an excellent Will for your client but not consider how the terms of a prior property settlement may impact on your clients testamentary intentions.By taking an integrated approach and considering both areas of law you are able to better identify client goals and coordinate your advice accordingly.
Spotting the risks and managing client risk
Family lawyers should be aware of succession law areas likely to affect their family law practice. Clients come to you for advice during a difficult time in their lives. They need you to understand their objectives and to guide them not only on the immediate matter but also on the longer-term implications of the decisions being made.
Take, for example, 2 children from a prior relationship and a new partner who has 1 child of her own.
A family lawyer may well advise a client that an equal split of assets would be an ideal property settlement. As all the children are currently financially independent there would seem to be no reason to favour one set of children over another.
However, if you had considered the succession law implications and gone a step further to ask questions about the client's estate, you may have uncovered that the client wanted all of their children to equally share in their estate. By failing to spot the risk, you have now left your client with an unfair property settlement, which is likely to impact the equal distribution of your client's estate.
A better understanding of succession law helps you identify these risks.
Developing your professional judgement
As legal professionals, we are regularly required to exercise professional judgement. Usually, this is when we are dealing with matters that require the technical application of the law. These are usually easy to identify.
What is often more difficult is identifying matters that require a higher level of professional judgement due to the circumstances involved.
Applying the technicalities of family law without regard to the impact on the client's estate plan could expose your client to unnecessary risk. They may be successful in their family matter, but if you have failed to consider their entire circumstance, you may have left them with an estate plan that does not meet their intentions.
By engaging in quality professional development that takes an integrated approach to both family and succession law, you are better able to identify matters that require additional consideration.
Professional development requirements have led to a range of CPD-accredited programs designed to address the increasing overlap between practice areas. Participating in a family law CPD live webinar that examines the interaction between property settlements and estate planning considerations enables practitioners to explore real-world crossover issues in depth. These sessions are interactive, enabling lawyers to ask questions, test scenarios, and broaden their perspective beyond a single doctrinal lens.
Likewise, succession law CPD live webinars provide opportunities to analyse how wills, testamentary trusts and family provision risks are shaped by prior family law settlements. By engaging with both areas in a live learning environment, practitioners can refine their judgment and develop a more cohesive advisory approach.
