Guide to de facto inheritance law in Australia

De facto relationships are becoming increasingly common in Australia, reflecting changing societal norms and family structures. Today, de facto couples account for about 20% of all relationships, a significant rise from just 6% in 1986. As these relationships become more prevalent, it is essential for parties to understand not only their legal status during the relationship, but also the important consequences that may occur in the event of separation or death.

It is crucial to understand what constitutes a de facto relationship, the legal rights and responsibilities that accompany it, and the potential impact on wills, inheritance, and estate disputes. Whether navigating separation, protecting assets, or ensuring your wishes are carried out after death, obtaining clear legal advice can provide certainty and peace of mind.

What is a de facto relationship?

A de facto relationship, according to the Family Law Act 1975 (Cth), is a relationship between two adults who are not married nor related by family and are in a genuine domestic relationship. Their relationship can satisfy any number of the following factors:

• duration;
• the nature of the common residence;
• a sexual relationship;
• financial interdependence;
• ownership of property;
• degree of mutual commitment to a shared life;
• children;
• registration of the relationship; and
• the public nature of the relationship.

However, depending upon the jurisdiction of the de facto relationship proceedings, the de facto definition outlined within section 21C of the Interpretation Act 1987 (NSW) may be relevant. It is notable, however, that the state and Commonwealth definitions do not greatly differ.

A widespread misunderstanding is that the relationship must have been ongoing for two years; whilst this is a common determinative factor, it isn’t the sole factor. There is, in fact, no sole determining factor.

Can my de facto partner claim my inheritance?

The answer to this question is dependent upon the type of estate planning arrangements left behind by the deceased. Broadly, when someone dies, only two scenarios will result: they will have either made a valid will that distributes their assets, or they will have not left any will. If someone doesn’t leave a valid will, they have died ‘intestate’.

What happens if a de facto partner dies intestate?

If your de facto partner died intestate, then the laws of intestacy would apply. In NSW, this would typically see the de facto partner receiving the whole of the estate, provided that there are no children of the deceased, or where the only child(ren) of the deceased are also children of the de facto partner.

However, where there are children of the deceased who are not also children of the de facto partner, the de facto partner would receive the deceased’s personal effects, a statutory legacy and a portion of the residual estate.

A suitable person will need to make a comprehensive application to the Supreme Court of New South Wales for letters of administration. The application will include a summary of the assets of the estate and evidence confirming that your de facto partner has died, evidence as to their familial situation and evidence of searches for a valid will. It is highly likely that you, as the surviving de facto partner, would need to execute an affidavit about your relationship, as well as other people confirming your relationship and no relationship with anyone else.

Therefore, it is crucial to have valid estate planning provisions in place ahead of time. It will considerably ease the administrative burden on loved ones who are left behind, as well as ensure that your testamentary wishes are carried out.

Can a de facto partner challenge a Will?

Yes, a de facto partner is entitled to challenge a will and make a family provision claim under the Succession Act. In fact, they are able to make a change even where no will was made but a claim has been made that inadequate provision has been made by way of the intestacy legislation.

Again, evidence will likely be required to confirm that a determination that a de facto relationship existed before the court then moves onto a consideration of the adequacy of the provision alongside the other beneficiaries of the estate.

Real life case concerning de facto inheritance law

An example of a real life case involving de facto inheritance law was the 2017 decision of Justice Slattery of the Supreme Court of New South Wales in Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe.

A summary of this case is as follows:

• The deceased died intestate with an estate worth around $800,000.
• The potential beneficiaries of the intestate estate were:
  • The plaintiff, who claimed that she and the deceased were in a 12-year de facto relationship at the time of his death; and
  • The deceased’s three siblings, who were the next natural beneficiaries upon intestacy according to the Succession Act.
• Firstly, the Court considered whether or not a de facto relationship had existed
• Following an extensive review of the evidence and witnesses, the Court concluded that for the 5-years prior to the deceased’s death, the plaintiff and the deceased had not been in a de-facto relationship.
• Therefore, the deceased’s siblings would benefit from the estate equally.
• However, the plaintiff had also filed a family provision claim. Eligibility for such a claim is wider than just having been in a de-facto relationship. For example, the plaintiff asserted that she was living in a close personal relationship with the deceased and that she had previously been a member of the deceased’s household and partly dependent upon him.
• The Court once more considered the evidence, through the lens of a family provision claim, and considered that the plaintiff was an eligible person based upon her previous dependence on the deceased.
• The Court awarded the plaintiff provision of $75,000 from the estate.

This is a compelling case about the complexity and risks of such litigation. It is almost certain that the plaintiff would have incurred legal fees in excess of the amount she was awarded by the Court, whilst the siblings would have also had their own considerable legal bill.

Contact Turnbull Hill Lawyers

Being in a de facto relationship can carry significant legal rights, responsibilities and considerations, including potential claims over assets, inheritance entitlements, and eligibility to contest or benefit from an estate. Without proper legal advice and planning, misunderstandings or overlooked obligations can create uncertainty for you and those close to you.

Obtaining expert legal guidance can help you better understand your circumstances, protect your interests, and ensure your wishes are properly reflected—whether you are planning for the future, post-separation, or dealing with a partner’s death. If you are in a de facto relationship and wish to discuss estate planning, or your de facto partner has recently passed away, the experienced Family Law and Wills & Estates teams at Turnbull Hill Lawyers can provide the advice and support you need.