Wills & Estate Q&As

How are de facto relationships dealt with?

This can be an issue when the deceased did not write a will clearly expressing their intentions towards family and friends. A de facto spouse may have to first prove that they were, indeed, the de facto partner of the deceased.

In some States, the law defines a de facto spouse as someone who was the sole partner of the deceased person and not a partner in another de facto relationship. This includes same¬ sex couples. In some cases a person can have a spouse and a de facto spouse.

The following issues will determine whether or not a relationship qualified as ‘de facto’:

• how long the relationship lasted
• how long the couple cohabited
• was there a sexual relationship
• what level of financial dependence existed between the parties
• was property owned, used and acquired
• was there evidence of a mutual commitment to sharing their lives
• how were household duties performed
• how was the relationship perceived by others outside the relationship
• care and support of children

A will can still be challenged by a de facto spouse and/or children if there was no provision for them or if they believe inadequate provision was made. This situation is the same as if it involved a married spouse and/ or children.

If there is no will and the estate is being disposed of by an Administrator, there is a clear formula for the distribution of assets to a de facto spouse and/or children. It is basically the same as that which applies to a married spouse and/or children — in other words, they have the same rights.

The de facto spouse inherits everything if there are no children.

If there are children, the de facto spouse and/or children will inherit everything. When the value of the estate — except for household goods such as furniture, kitchenware, appliances, consumables, pets and so on — does not exceed a prescribed amount, the spouse inherits everything. Currently, the prescribed amount is set at $350,000.00, CPI adjusted from the December 2005 quarter to the quarter immediately preceding the date of death. If the value exceeds that amount, then all household goods, the prescribed amount and one-half of everything else is inherited by the spouse and the remainder of the estate — the ‘residue’ — is inherited by the children.

If there are children, but the de facto spouse is deceased, the children get an equal share of the whole estate. If a child of the deceased is not alive and has left children of his or her own, they inherit that share of the estate.

If there are children of a previous marriage or relationship and the de facto spouse survives then the spouse receives one half and the children of the prior marriage/relationship receive the other one half.

If neither a de facto spouse nor children are alive, then the Administrator must search for the nearest living relative. If there are none, the estate goes to the government.

Do you have a current will? Do you need to discuss your existing will? Contact Solari and Stock Miranda on 8525 2700 or click here to request an appointment with one of our Wills and Estates team.

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