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Intestate Succession Act Queensland

If someone dies without leaving a last will and testament, their estate is described as “intestate”. Every state in Australia has separate legislation that determines how intestate estates are administered. In Queensland, the legislation that governs intestate estates is the Succession Act 1981. This Act creates rules of intestate succession that distribute an estate to the closest relatives of the deceased, primarily their spouse and children. Unfortunately, this approach can result in assets going to relatives who might not have been chosen by the deceased to inherit, and it may not make provision for everyone who was important to the deceased. It is for this reason, if no other, that it is vital that everyone prepare a will.

Intestate Succession Act Queensland: Spouses

A spouse is the main beneficiary of an intestate estate under the Succession Act in Queensland. If the deceased was married and also had children, the intestate estate will be divided between a spousal entitlement and an issue entitlement. The spousal entitlement will include the first $150,000 of the estate and all household chattels (which is composed of items such as furniture, ornaments, and household pets). The remainder of the estate is then divided between the spouse and the children of the deceased.

Under the Succession Act, same-sex spouses have the same rights as heterosexual spouses, and registered and de-facto partners have the same rights as married spouses.

Intestate Succession Act Queensland: De-Facto Spouse

An important determination following the death of an intestate person is whether they have a partner who would be accepted by the court as a de facto spouse. A de facto partnership is defined as “two persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family”.  In Queensland to be accepted as a de facto spouse for the purposes of the intestate succession act, a couple must have been in a relationship for at least two years, on a continuous basis, and still be in a relationship at the time of the deceased’s death.

The couple must not only live together, but they must live together on a “genuine domestic basis”. Evidence of a genuine domestic relationship can include a sexual relationship, financial interdependence, shared ownership of property, and shared care for children and the household. In determining whether a genuine domestic relationship exists, the court will also consider whether the couple had a commitment to a shared life together and whether others accept the two as a genuine couple.

It is, of course, possible for a deceased person to have both a married and de facto spouse at the time of their death. Section 4AA(5)(b) of the Family Law Act 1975 makes specific provision for a genuine de-facto relationship to “exist even if one of the persons is legally married to someone else or in another de facto relationship”. This situation could occur, for instance, if the deceased was legally separated from their spouse but not divorced, and had subsequently established the necessary degree of domestic commitment to a new de facto partner.

Where there is both a spouse and a de facto spouse in existence the intestate succession act in Queensland provides for the division of the spousal entitlement but does not specify the percentages of this division. In this situation, the division may be agreed between the two spouses, or the court may make a distribution order based on what is just and equitable. The administrator of the estate may also determine the ratio of the distribution.

Intestate Succession Act Queensland: Issue

If someone dies intestate without a spouse but with “issue” (children), then the children will inherit the estate divided equally amongst them. An adopted child will inherit under the intestate succession act in Queensland in the same way as a biological child. An illegitimate child also has the same rights as a child born in a marriage under the provisions of the Succession Act in Queensland, but proof of paternity may need to be provided.

Intestate Without Spouse or Issue

The parents of an intestate person will inherit the estate of their child if he or she dies while single and childless. If one parent has already died, the surviving parent stands to inherit all the assets of the estate. In-laws and step-parents are not considered next of kin and are not provided for in the intestate succession rules. Where there are no surviving parents, the siblings of the deceased will inherit the estate equally.

If the deceased has no surviving parents, siblings, nieces or nephews, then the estate is divided equally between more distant relatives on both the maternal and paternal sides of the family. If there are no relatives at least as close as a first cousin, the estate will revert to the Crown.

If you’d like more information about the intestate succession act in Queensland, or would like to speak with us about an intestate estate, please call Armstrong Legal on 1300 038 223 or send us an email 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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