Claims by Domestic Partners (Qld)
The death of a de facto partner, also known as a domestic partner, is always tragic. When it comes to administering a deceased estate, the informal nature of a de facto relationship can create many complications. This article deals with claims by domestic partners on deceased estates in Queensland.
What is a domestic partner?
A domestic partner for deceased estate purposes is defined as a person with whom the deceased was in a genuine domestic relationship for a continuous period of two years. To determine whether a relationship was a domestic relationship, the court considers:
- The nature and extent of the parties’ common residence;
- The length of their relationship;
- Whether or not a sexual relationship exists or existed;
- The degree of financial dependence or interdependence, and any arrangement for financial support;
- Their ownership, use and acquisition of property;
- The degree of mutual commitment to a shared life, including the care and support of each other;
- The care and support of children;
- The performance of household tasks; and
- The reputation and public aspects of the relationship.
The difficulty that domestic partnerships pose in estates law arises from their informality. Frequently, parents and children of the deceased do not view the deceased’s relationship as valid.
A marriage or a civil partnership is intact until such a time as the relationship has been formally dissolved. For a marriage, that means divorce and for a civil partnership, that means de-registration of the relationship. With a de facto relationship, there is no way of verifying whether the relationship is still on foot.
Claims by domestic partners where there is no will
Except in the very smallest of estates, or if the deceased had children, we recommend that an early grant of letters of administration is obtained by the domestic partner of the deceased.
This has two benefits:
- The grant of letters of administration provides documentary evidence that a relationship existed between the parties; and
- The grant of letters of administration prevents a less eligible family member from making an opportunistic claim.
What the spouse is entitled to on intestacy, varies depending on whether the deceased had children. Under Queensland intestacy law:
- if the deceased had no children, the domestic partner receives the whole of the estate;
- if the deceased had one child, the domestic partner receives the household chattels, the first $150,000 of the remaining assets, together with half of the balance;
- if the deceased had more than one child, the domestic partner receives the household chattels, the first $150,000 of the remaining assets and one-third of the balance;
Claims by domestic partners where there is a will
If the deceased left a will, this will may have recognised the domestic partner’s relationship with the deceased and made adequate and proper provision for their needs. If adequate and proper provision has not been made under the deceased’s will, then the domestic partner is entitled to make an application for family provision.
The courts have determined that a domestic partner should receive a minimum provision of secure accommodation and a sum of money for contingencies (“a nest egg”). There are two main ways that claims by domestic partners can be fought. First, there is an argument that the domestic relationship was not a valid domestic partnership under the Succession Act 1981. Second, there is an argument of the quantum of provision.
Arguments regarding the validity of a relationship are fraught with danger. Often, the party who is objecting to the relationship does not have all the material before them to make the full determination of who is and who is not in a relationship. Caution is advised when proceeding with these cases.
Arguments regarding the quantum of the family provision order usually have greater success. It may be possible to argue that the domestic partner is entitled to a mere life interest in a property but that the property remains as stated under the deceased’s will. It may also be possible to negotiate on the size of the nest egg.
If you do not meet the two-year criteria
If a relationship has not met the two-year statutory criteria for a domestic partner, a domestic partner has a back-up claim against the superannuation of the deceased. Superannuation does not have a minimum requirement for a domestic partnership. The criteria upon which a domestic partner is considered at the state level is substantially similar to that of an ordinary grant. Secondly, a domestic partner may also claim as an interdependent of the deceased.
The criteria for an interdependent are:
- The deceased was in a close personal relationship with the person;
- The deceased was living with the person;
- The deceased and the person provided each other with financial support; and
- The deceased and the person provided each other with domestic support and personal care.
There are also limited exceptions if one of those parties has a disability.
The difficulty with superannuation claims is that they do not give a person a wider right to an estate, such as access to chattels or bank accounts.
What to do next
In circumstances where a person is in a de facto relationship, it is possible that the surviving partner may need to make court applications that are technical and should not be approached without the assistance of a lawyer. Armstrong Legal regularly advises domestic partners through the deceased estate process. If your domestic partner has recently died, please telephone our hotline lawyers to arrange an appointment with one of our Queensland Contested Estates lawyers.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.