In Australia, de facto couples enjoy most of the same benefits as married couples. Family law has evolved in Australia to recognise de facto relationships and provide protections for both the members of a de facto relationship and the children born into such relationships. Other areas of law have also taken steps to recognise the prevalence of de facto relationships. For instance, when a de facto partner dies intestate (without a will), their surviving partner has inheritance rights comparable to those of a legally married spouse.
The main obstacle for a de facto partner in such circumstances is often proving their legal status in order to obtain their rightful inheritance. Sometimes there is dispute from another party, such as a separated spouse, who claims that the deceased was not in a genuine de facto relationship with the claimant. In that case, it is up to the surviving partner to establish the relationship’s authenticity by presenting evidence to the Court.
De facto relationships
Under the Family Law Act 1975, a de facto relationship is defined as between two people (of any sex) who are not married or related by family and live together on a genuine domestic basis. A relationship rises to the level of de facto status depending on the following factors:
- The duration of the relationship;
- The sharing of a common residence;
- Whether the couple have a sexual relationship;
- Financial dependence and interdependence with each other;
- Acquisition, ownership and use of property;
- Mutual commitment to a shared life;
- Whether the relationship is registered in the state or territory;
- Care of children; and
- Public acknowledgement of the relationship.
It is important to note that a person can be legally married to one person and in a de facto relationship with someone else at the same time.
With and without a will
Of course, inheritance in de facto situations is most straightforward if the deceased leaves a valid will bequeathing an inheritance to their partner. When the deceased leaves a valid will, their assets are distributed according to that will. However, certain people have the right to challenge the legitimacy of a will, or contest a will that is unfair and fails to provide adequately for them. For instance, a child can contest a will that leaves an estate disproportionately to a de facto partner and does not provide adequately for them. Conversely, a de facto partner left out of a will can contest the will by arguing that the deceased had a moral responsibility, because of their relationship, to make adequate provision for them.
It is always advisable for an adult to consult with an estate lawyer to draft a will, but this is especially important when there is a de facto partner as well as other potential beneficiaries, such as children from a previous relationship or an estranged spouse. It should be noted that although having a current will is important, it does not shield the deceased estate from valid claims. It is important to speak with an estate lawyer about strategies to protect a de facto partner if there may be claims from other family members.
When someone dies without a will, their estate is considered to be “intestate”. In such cases, an appointed administrator distributes the estate according to the relevant state or territory law. Unfortunately, while the family law system is largely consistent across Australia, succession law varies according to the specific state or territory. For instance, the Succession Act 2006 applies in New South Wales, while the Succession Act 1981 applies in Queensland. While all states and territories recognise that a de facto partner may be a relevant beneficiary in an intestate estate, there are differences in the extent to which the law prioritises the interests of a de facto partner over other beneficiaries.
Revocation of an inheritance
When a will has not been updated in some time, it can contain bequests that have become obsolete or out of date. The law recognises this possibility and takes steps to automatically update wills when certain common events occur. For instance, when a will includes a bequest to a spouse, a divorce from this spouse automatically overrides the will. However, this does not necessarily apply to a de facto couple. In some states, a gift to a de facto partner in a will remains valid, even after the end of the relationship.
For instance, in Blyth v Wilken [2015], the deceased left the bulk of his estate in his will to his “de facto wife”, a misnomer as the couple were separated for several years at the time of his death. Under the relevant succession law, it was unclear whether this bequest should be honoured. The executors in this case had to apply to the Supreme Court of Western Australia for directions as to whether they should fulfil the “intended disposition”, as the relationship ended after the deceased wrote the will. This case will be a persuasive precedent in cases in other states and territories of Australia.
Because of the complexities involved in succession law in each jurisdiction, it is important to seek legal advice to understand de facto inheritance law. Get in touch with the family law team at Taylor Rose on 1800 491 469 for any assistance.
