De Facto Partners and Intestacy: Understanding De Facto Partner Entitlements
When someone passes away without leaving a Will they are considered to have died intestate. In such situations the distribution of the deceased person’s estate is determined by statutory rules. The Succession Act of 2006 (NSW) (the Succession Act) outlines the statutory rules for distribution of an intestate estate.
In determining who is considered as the next of kin entitled to the intestate estate, the Succession Act gives a broad definition to the term ‘spouse’. According to section 105 of the Succession Act, a ‘spouse’ includes someone legally married to the person who has died intestate or was in a domestic partnership with the person who has died intestate, immediately before their death. A domestic partnership also includes a registered relationship or a de facto relationship that has existed continuously for a minimum of two years or has resulted in the birth of a child.
In case of intestacy, the Court has the authority to grant administration of the deceased’s estate to eligible persons. A person’s eligibility to administer the estate and the order of who can inherit the estate is determined by the relationship they had with the deceased. The spouse (including a de facto partner) ranks as a person with the greatest claim to the estate of the deceased who died without a Will. Therefore it is important to establish the existence of a de facto relationship, for the de facto partner to have a preferential entitlement to the estate.
Unlike a marriage or a registered relationship, a de facto relationship is not established by any form of registration but must be proved based on actions and intentions of the parties. The definition of a de facto relationship as contained in s21C of the Interpretation Act 1987 includes relationships where two persons have a relationship as a couple living together and are not married to one another or related by family, relationships between persons of the same sex, relationships where one person is legally married to another person or in a registered relationship with someone else. Establishing the existence of a de facto relationship for intestate estate purposes is a complex exercise.
A Will Dispute Lawyer could advise and assist you with the legal framework surrounding intestacy and de facto relationships which is crucial to ensure the proper distribution of the intestate estate and to protect the entitlements of a de factor partner in such situations. If you have been in a de facto relationship and wish to find out if you have an entitlement to the intestate estate of your loved one, you should consult our Will Dispute Lawyers.
More Information
If you wish to obtain further information, advice or assistance in updating your Will, please contact one of our Will Lawyers in our Wills and Estates team at Matthews Folbigg on 9635 7966, email us at estates@matthewsfolbigg.com.au or through the website www.matthewsfolbigg.com.au
DISCLAIMER: This article is provided to readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as a definitive or complete statement of the relevant law. Liability limited by a scheme approved under Professional Standards Legislation.
