Dying Intestate in Queensland
If a person dies without a will, they are said to have died “intestate”. The result of dying intestate in Queensland is that the person’s assets are distributed according to the Succession Act 1981. Dying intestate in Queensland means that the deceased’s wishes and preferences are not considered, and there is no opportunity for them to make provision for people who are otherwise unrecognised by the Succession Act 1981. This article outlines the list of relatives that are eligible to inherit from an intestate estate in Queensland, and looks in greater detail at the rights of two categories of potential beneficiaries: de facto and same-sex partners, and adopted and step-children.
Who Inherits When Someone Dies Intestate in Queensland?
After dying intestate in Queensland, a person’s assets will be distributed first to any living next of kin. This category includes the deceased’s spouse and the deceased’s offspring (also known as “issue”). In Queensland, if the deceased has a surviving spouse but no children, then the entire deceased estate (after the payment of debts and funeral expenses) will go to the spouse. If there are children, then the surviving spouse will receive the first $150,000 of the estate, and any household chattels, and will divide the balance of the estate with the children of the deceased. If there is only one child, the spouse will divide the residuary estate with the child in equal shares. If there is more than one child, the spouse will inherit one-third of the residual estate, and the remaining balance will be divided equally amongst any children. Where the deceased does not have a surviving spouse but is survived by offspring, the children will inherit the intestate estate in equal shares.
Who is Included in the Category of Spouse?
The law governing dying intestate in Queensland defines a spouse to include anyone in a marriage, registered relationship, or de facto partnership with the deceased. Under this law, a de facto partner (including a same-sex partner) has the same rights as a married spouse. To qualify as a de facto spouse, it is necessary for the partner to either have previously registered the relationship or be able to prove they lived with the deceased on a “genuine domestic basis”. To inherit a share of an intestate estate in Queensland, a de facto spouse needs to have been in a relationship for at least two years prior to the date of death. When the court is evaluating whether two people were in a genuine domestic relationship, they will consider factors such as the length of time that the couple were together; whether they lived in the same house full time; whether there was a sexual relationship; any financial dependence and joint acquisition or ownership of property; as well as shared responsibility for children and household activities. The court will also look at more nebulous concepts such as whether the couple was committed to a life together, and whether other people accepted the two people as an established couple. Dying intestate in Queensland complicates the process whereby a de facto spouse inherits their partner’s estate, but it is likely that a de facto spouse will ultimately receive the same distribution as a married spouse.
If someone is separated but not divorced from their spouse upon dying intestate in Queensland, then they are still considered married under the law, and the estranged spouse is entitled to a spouse’s share of the deceased’s estate.
Who is Included in the Category of Issue?
The definition of “issue” includes both biological and legally adopted children. For succession purposes, an adopted child has the same rights as a biological child to inherit a portion of an intestate estate, according to the order and percentage set out in Queensland legislation.
Under Queensland succession law any biological child of the deceased, including a child born out of marriage, is entitled to claim against the deceased’s estate. The effect of dying intestate in Queensland is that the biological child may need to provide evidence of paternity. Proof of paternity can most easily be satisfied if paternity was proven during the lifetime of the deceased, through the assertion of the deceased or a declaration from the Supreme Court.
What Happens if There is no Issue or Spouse?
If the deceased had no spouse or issue, then the result of dying intestate in Queensland is that other relatives will inherit the deceased estate, in an order set out in the legislation. This order starts with the parents of the deceased and then moves on to siblings, nephews and nieces, grandparents, uncles, aunts and cousins. In-laws and stepparents are not eligible to receive distributions from an intestate estate. In Queensland, the distribution of an intestate estates stops at the level of the first cousin, which differs from other jurisdictions where a relation as distant as a third cousin may inherit from an intestate estate. If no close relations are identified, the intestate estate reverts to the state.
If you have questions about the effects of dying intestate in Queensland, or if you want to ensure control over the distribution of your estate through the making of a will, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.