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Dying Intestate (NSW)

A person who dies without writing a will is said to have died “intestate”. The unfortunate consequence of dying intestate in New South Wales is that the testamentary wishes of the deceased are not considered. Dying intestate means that the preferences of the deceased are not respected in the distribution of the deceased estate, and the deceased has no option to make provision for those who will go unrecognised under succession law. In NSW, the assets of the deceased are distributed according to intestacy rules legislated in the Succession Act 2006. This article outlines the categories of people who are eligible to inherit after someone dies intestate in NSW, and examines, in particular, the rights of two types of beneficiaries: spouses and children.

Dying Intestate in NSW: Who Inherits?

When someone dies intestate in NSW, the Supreme Court of New South Wales will provide letters of administration authorising an administrator to distribute the assets of the estate. The deceased’s assets will be distributed principally to any next of kin, specifically the spouse and “issue” (children) of the deceased. If the deceased was married, or in a de facto or domestic relationship at the time of their death, then the spouse will inherit the entire estate (after any liabilities have been discharged). Even when the deceased has children with their current spouse, the spouse still inherits the whole estate.

The exception to this rule occurs when the deceased has a spouse and also children from another relationship. In that case, the spouse inherits the deceased’s personal effects, a CPI-adjusted statutory legacy, and half of the remaining estate. The remainder is distributed to the children.

It should be noted that any property that was held by the deceased in joint tenancy will automatically transfer to the surviving party after their death. This is usually the case for a marital home, which is generally owned jointly by spouses.

Dying Intestate: Definition of Spouse

Succession law in New South Wales defines the term spouse to include anyone in a marriage or domestic partnership (including de facto and registered partnerships) with the deceased. In NSW a party who is separated, but not divorced, from their spouse at the time of their death is still considered legally married, and the estranged spouse is entitled to inherit their deceased spouse’s estate. To qualify as a de facto partner, the relationship with the deceased must have lasted for two years or have produced a child.

Dying intestate in NSW complicates the inheritance process for parties in a domestic relationship, but a de facto spouse or genuine domestic partner will ultimately inherit if they can prove their relationship status to the court. A genuine domestic relationship is defined according to a number of factors, including the length of the relationship, whether the couple cohabitates full time, whether there is a sexual relationship, the extent of financial interdependence, and the level of shared responsibility for household duties and childcare. The court will also consider more abstract concepts such as the level of commitment between the couple and whether the community accepts the two parties as an established couple.

Dying Intestate: Definition of Issue

The other type of beneficiary who typically inherits an intestate estate is the issue of the deceased. The legal term “issue” includes both biological and lawfully adopted children. Under succession law, an adopted child and biological child have identical rights and can inherit an equal portion of an intestate estate. Any biological child, including children born from unmarried parents, is entitled to inherit from a deceased’s estate. However, a parent dying intestate may mean that the biological child needs to provide evidence of paternity to the court.

What Happens If There is No Spouse or Issue?

If a person dies intestate without issue or spouse in NSW, then other relatives may inherit according to a legislated order of succession. First in line to inherit are the parents of the deceased, followed by any siblings, then nephews and nieces, grandparents, uncles and aunts and finally cousins. If no eligible relation is identified, the assets of the deceased estate are inherited by the state.

Dying Intestate in NSW means that someone else will decide who inherits your estate. It is a much better idea for you to make a will, so you can decide how your estate is distributed. You may wish to leave gifts to close friends or a favourite charity, and you may wish to ensure that your estranged spouse does not inherit. Drawing up a will also lessens the burden on your loved ones after your death, as they will have clear instructions as to your preferences and wishes. If you have further questions about the consequences of dying intestate in NSW, or want to ensure that you control the distribution of your assets after your death, please contact us on 1300 038 223 or email Armstrong Legal to make an appointment.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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