No Will – What happens if you have been living in a De Facto relationship and you didn’t have a Will when your partner dies?
When person dies without a Will it is said they died ‘intestate’. This means that their Estate will be distributed in accordance with intestacy rules set out in the Succession Act.
Under the intestacy rules a ‘spouse’ is defined as a person:
(a) Who was married to the deceased at the time of their death; or
(b) Who was a party to a domestic partnership with the deceased at the time of their death.
A ‘domestic partnership’ includes a de facto relationship that:
– Has been in existence for a continuous period of 2 years; or
– Has resulted in the birth of a child.
Accordingly, if you and your partner were in a continuous de facto relationship for 2 years or you and your partner had a child together, then the intestacy rules will be applied when distributing your partner’s Estate.
The Intestacy Rule and De Facto Relationships
If your partner had no children
Under the intestacy rules if your partner had no children then you are entitled to the whole of the estate.
If you and your partner had children together
If you and your partner only had children together then you are also entitled to the whole of your partner’s estate.
If your partner had children with another person
If your partner had children with another partner than you are entitled to the following:
(a) Your partner’s personal effects; and
(b) The statutory legacy which is an amount worked out based on a formula set out in the Succession Act; and
(c) One half of the remainder of your partner’s Estate after the statutory legacy has been removed.
What if the Intestacy Rules don’t apply?
If you do not satisfy the definition of a spouse under the intestacy rules you may still have the ability to receive a distribution from your partner’s Estate.
This is because you may have the ability to contest the distribution of your partner’s Estate by making a family provision claim under the Succession Act. A family provision claim enables an eligible person to challenge the way in which a deceased person’s Estate is distributed. As someone who was in a de facto relationship with your partner at the time of their death you are an eligible person to make a family provision claim.
What do I do next?
If you have been living in a de facto relationship and your partner dies without making a Will you need to seek legal advice as soon as possible to determine whether you are entitled to a distribution from the Estate under the intestacy rules or whether you need to make a family provision claim.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide you advise you in the event that your De Facto partner dies without leaving a Will.
Call today for a an appointment closer to home on 9221 0341
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