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De Facto Rights Over Deceased Estates (WA)

In Western Australia, a de facto partner has rights over their partner’s deceased estate. If the deceased has not left a valid will, the de facto partner is automatically the chief beneficiary of the estate. If the deceased has left a will but not made adequate provision for their de facto partner, the partner can make a Family Provision Claim against the deceased estate. This article outlines de facto rights over deceased estates in Western Australia.

De Facto Definition

The law relating to de facto relationships is different in Western Australia. This is because Western Australia, unlike every other state and territory, chooses not to refer power over de facto relationships to the Commonwealth. As a result, the definition of de facto relationship contained in the Family Law Act 1975 (Cth) does not apply in Western Australia.

Instead, de facto unions, including same-sex relationships, are protected under the Family Court Act 1997 (WA). This legislation does not define de facto relationships, but the Interpretation Act 1984 establishes that a de facto relationship is a union between two parties who live together in a marriage-like relationship. The Interpretation Act sets out a list of factors that indicate whether a relationship is a genuine de facto union, including the following.

  1. The length of the relationship;
  2. Whether the couple cohabitated;
  3. The type of living arrangements;
  4. Whether there has ever been a sexual relationship between the pair;
  5. Financial interdependence or dependence;
  6. Whether the couple own, use and acquire property together;
  7. Mutual commitment to a shared life;
  8. Care and support of shared children; and
  9. Social acknowledgement of the relationship.

By definition, a couple who are already married or closely related cannot be in a de facto relationship with each other.

In WA, de facto couples have many of the same legal protections and rights as married couples. A de facto couple can verify their relationship by registering a civil union or through a Family Court of Western Australia assessment. However, it can be harder to establish de facto status if one of the partners is deceased and therefore unable to testify to the nature of the relationship.

De Facto Right To Administer The Deceased Estate

A testator in Western Australia can leave a will appointing their de facto partner as executor of the estate. However, if the deceased passes away without making a will, the de facto partner will need to establish their right to administer the estate by applying to the court for a grant of Letters of Administration. In Western Australia, only people entitled to inherit from the deceased estate can make such an application. If multiple people are interested in taking control of the estate, they can share the administration, or the court decides who has the greatest right to the grant. A de facto partner has priority to apply for a probate grant unless the deceased was still married and the spouse wishes to administer the estate.

Does A De Facto Partner Have Rights To Inherit An Intestate Estate?

Under section 15 of the Administration Act 1903, a de facto partner has the same rights as a wife or husband to inherit their spouse’s intestate estate.  However, the situation is more complicated if the deceased was married to another person or had several de facto partners when they died. If the deceased was still married but lived exclusively with their de facto partner, then the partner and spouse share the spousal intestate entitlement. However, if the deceased lived with their de facto partner for at least five years, then the de facto partner has an absolute right to the spousal entitlement. If the deceased had several de facto partners when they died, they share entitlement equally.

Can A De Facto Partner Contest A Will In WA?

A current de facto partner can also make a claim under the Family Provision Act 1972 for further provision from the deceased estate. Even a former de facto partner is eligible under the Act if they were entitled to ongoing financial support from the deceased. As such, if a de facto partner feels that the testator has unfairly neglected them in the will, they can ask for a reallocation of the deceased estate in their favour. The claimant needs to establish that the testator had a moral responsibility to provide for them beyond the current terms of the will. The claimant also needs to provide a compelling case to the court that they have a financial need for provision.

It can be difficult to understand your rights as a de facto partner to a deceased estate. In Western Australia, you have the right to apply for probate, inherit from an intestate estate and contest an unfair will. The contested wills team at Armstrong Legal is here to help if you need assistance with any will dispute. Contact us online or call 1300 038 223 today for specialist advice.

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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