Kissin Cousins! Did you know you can legally marry your cousin, your niece or nephew, your aunt or uncle? Not only that, but they can possibly benefit from your estate if you then have a will.
Hi, I’m Adrian Corbould, Accredited Specialist in Wills and Estates at Turnbull Hill Lawyers with the Battle of Wills series where I discuss contested estates and related areas.
Upon someone’s death, if Will can be found, it is presumed the deceased died intestate, meaning without a Will. This happens more often than you might think. In New South Wales, the Succession Act specifies the order in which eligible relatives will inherit your estate if you die without a Will.
If you die without eligible relatives, then your estate will pass to the state government. No one wants that. The order divides eligible relatives into two groups: spouses and other relatives.
A spouse is someone who was married to the deceased immediately before their death or was a party to a domestic relationship such as a de facto spouse at death. A de facto relationship for the purposes of intestacy is one that has been in existence for a continuous period for at least two years, or has resulted in the birth of a child.
Spouse entitlements does not include ex-spouses. So, if you die leaving a spouse and no children, your spouse gets everything. If you leave a spouse and children and your children are also the spouses’ children, your spouse gets everything. If you leave a spouse and children, but the children are not your spouse’s children, your spouse is entitled to:
Your personal effects
A CPI adjusted statutory legacy, which is currently about half a million dollars
One half of the remainder, if any, that’s left over.
The other half is equally divided between your children.
This can become quite involved, so we’ll skip over this for now.
That’s spouses, now other relatives. The order of your relatives who can inherit if you have no spouse is as follows: Children, parents, brothers and sisters, grandparents, aunts and uncles and cousins.
Each category must be exhausted before moving on to the next. And once an eligible relative is found, the process stops.
Entitlement of children
If you have no surviving spouse, all your children will share your estate equally. If you have a child who has died before you and that child has surviving children, i.e., your grandchildren, your grandchildren will take their parents’ share equally.
If one of your children have died with no children, their share is divided among your other surviving children. And of course, an adopted child is deemed a child for these purposes. Parents.
Where you leave no spouse and no children and your parents are alive, your parents will get equal shares of your estate. If only one of your parents is alive your whole estate goes to that one parent.
Brothers and sisters
If you have no spouse, no children, no parents, then your brothers and sisters share the whole estate equally. Your half-sisters and half-brothers are specifically included. If a brother or sister dies before you, leaving a child or children, their children take their parent’s share equally. That is your nieces and nephews.
If there’s no spouse, no children, parents, no brothers and sisters, no nieces or nephews, then your grandparents share the estate equally. Aunts and uncles. No spouse, no children, no parents, no brothers and sisters, no nephew or niece and no grandparents, the brothers and sisters of each of your parents on both sides, that is, your aunts and uncles will get the whole estate equally.
Now, to cousins. If an aunt or uncle dies before you, leaving a child, their child, your cousin or cousins will share equally your deceased’s aunt or uncle share. Now this only extends to first cousins. It stops there. If a first cousin predeceases you, the cousin’s children do not inherit. And that’s it. There’s no one after that. If there’s an absence of persons entitled, the state government gets your entire estate.
So, summing up, marrying your relatives is a choice. But leaving them your estate without a Will is not. So, make a valid Will and none of the above occurs. Thanks for watching. See you again next time.