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De Facto Inheritance Laws in Australia

It is a common misconception that de facto couples in Australia enjoy the same legal rights and protections as married couples. While family law has largely evolved to recognise de facto relationships, couples can still face hurdles in other areas of law. This article highlights some of the potential pitfalls that de facto couples face in relation to the law of inheritance, known as succession law, in Australia.

What is a De Facto Relationship?

One of the challenges of defining a de facto relationship for the purposes of inheritance law is that whilst the family law system in Australia is national, each state legislates separately for succession law. The courts in each jurisdiction can, therefore, take a different approach to determining whether a couple is genuinely in a de facto relationship. Broadly, a de facto relationship is two people who are not married to each other and are not blood relations living together on a genuine domestic basis. The phrase “genuine domestic basis” is what separates a de facto couple from two people who are flatmates, but it can be a difficult concept to define.

In deciding whether a couple is de facto for the purposes of inheritance law, the courts are likely to look for evidence that the couple has lived together in one home, and shared a sexual relationship at some point. The length of the relationship is also significant, as is evidence of trust and generosity in financial matters. It can be seen as compelling if a couple has acquired joint property, and shared domestic work and childcare. The courts have accepted evidence that a couple has a mutual commitment to a shared life, which is sometimes expressed through a future intention to marry. The courts have also looked for evidence that the community perceives two people as a couple.

What Rights Do De Facto Couples Have in Inheritance Law?

The presence or absence of a will determines the rights of a de facto partner in relation to inheritance law.

De facto partners and intestate estates

When someone dies intestate (that is, without a will), an administrator is appointed to distribute their estate according to state or territory law. Under this legislated formula, a de facto spouse has basically the same inheritance rights as a married spouse. The de facto spouse will inherit everything if the deceased had no children. Where there are children, the de facto spouse will inherit a prescribed amount, and then share the residue of the estate with any children.

De facto contesting a will

The situation is, perhaps surprisingly, more complex where there is a valid will. If there is a valid will that makes provision for the de facto partner, that will could be contested by other beneficiaries and potential beneficiaries, including the children of the deceased. If there is a will that makes little or no provision for the de facto spouse, that spouse could contest the will, arguing that the deceased had a moral responsibility to make adequate provision for them.

Ex-de facto partner named in will

An even more complicated situation can arise if the deceased’s will has not been updated, and still names an ex-de facto spouse as a beneficiary. Whilst the dissolution of a legal marriage through a divorce will automatically override a will, the same does not necessarily apply to de facto couples, because the dissolution of a de facto relationship is not as clear-cut as a legal divorce.

In Queensland the end of a de facto relationship does have the same effect on a will as a divorce: any gift left to an ex de facto partner is revoked unless the testator expressly issues a contrary intention in their will. In Tasmania and the Australian Capital Territory the registered termination of a registered de facto relationship revokes a gift within a will to an ex-de facto spouse, although in the ACT this only applies to same-sex relationships. But in several Australian states and territories separating from a de facto partner does not automatically override a will. In these states, a gift to an ex-de facto in a will is valid, despite the termination of the relationship. The complexity of this situation was evident in a recent case in Western Australia, Blyth v Wilken, where a court found that the wording of the gift in the will determined whether the gift survived the end of the relationship.

A key lesson that may be drawn from de facto inheritance law in Australia is that wills need to be updated to reflect important life events, from forming a new relationship to the dissolution of the relationship. A solicitor can draft a will to anticipate and make provision for future events, which reduces the need to continually update the document.

For more information on de facto inheritance laws in Australia, or help drawing up a will at the end of a de facto relationship, 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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