De Facto Partners and Deceased Estates

To be considered a de facto couple, partners in Queensland must meet an eligibility requirement. They must have lived together on a genuine domestic basis for a continuous period of at least two years. If a relationship does not meet the definition of a de facto relationship and one partner dies, the other partner will be limited in their ability to inherit from the deceased partner’s estate. This article deals with de facto relationships and deceased estates.

Estate claims and non-de facto partners

Parties to relationships that do not meet the criteria of a de facto relationship are not eligible to:

• apply for Letters of Administration on intestacy;
• receive any benefit from the deceased partner’s estate on intestacy;
• make a Family Provision Application

When does a de facto relationship end?

A number of factors guide the decision about whether a relationship was on a “genuine domestic basis”. But what exactly is required for “living together” and what events break a “continuous period”?

It would be absurd if a de facto relationship ended because one partner travelled on a business trip for two weeks. Therefore, a temporary separation such as that does not break the de facto relationship. But what about if one partner studies abroad for six months, or if the couple is separated for an extended period by events outside of their control?

Required periods of separation following a period of cohabitation have been found not to break the continuous period in exceptional circumstances. These include, for example, defence force deployments, terms of imprisonment, domestic violence orders and periods of hospitalisation.

The courts have previously been guided by the intentions of the parties. A separation does not always break the continuous period if both parties intended that the relationship continue.

Re HRA

The 2021 Queensland Supreme Court decision of Re HRA involved a couple who commenced a relationship in 1982 and moved in together in 1995. They lived together until 2012. There were no doubts that they were a de facto couple from at least 1995 to 2012, a period of 17 years, and potentially longer.

In 2011, the male partner was diagnosed with progressing dementia. His doctors recommended he move into a retirement village so that he could receive the care required. However, he refused as he did not want to leave his home.

In late 2012, the female partner was diagnosed with moderate to severe dementia. Doctors also recommended that she move into a retirement village. Her condition made it difficult for her to care for the male, especially as both their conditions deteriorated. The female wanted to move into a retirement village together with the male, but the male refused. In December 2012, the female decided to prioritise her heath and to move into a retirement village alone.

In March 2013, a niece was granted guardianship and administration orders for the male domestic partner due to his progressing dementia. In June 2013, the niece made the decision on his behalf to move him to a retirement village. However, he was moved to a different retirement village to the female.

The male died in January 2020 without a will. His niece and nephew applied for Letters of Administration on Intestacy and a declaration that they were entitled to share the estate as next of kin. Their application was opposed by the female who sought a declaration that she was the de facto partner of the male and as such entitled to a share of his estate.

Did the de facto relationship continue?

The court considered whether this long term de facto relationship continued despite the seven-year separation for health reasons.

The court applied a much stricter interpretation than had been followed in previous case law. The judge reviewed the evidence of the factors relevant to assessing a de facto relationship. The focus was on the two-year period immediately before the death.

The court found that there was no evidence of any of the relevant factors in the critical two-year period. It found that the female had made a decision to end the relationship by choosing to move into the retirement village in 2012. Although it was a completely understandable and justified decision, it was a decision nevertheless. Though the male was found not to have the capacity to choose to enter or end a de facto relationship, the female did. Accordingly, the court was not satisfied that there was a mutual intention to continue the relationship.

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