Can My De Facto Make a Claim on My Estate?
In recent years, de facto partnerships have become increasingly prevalent in Australia. As more couples choose to live together in committed relationships without getting married, it’s vital to recognise the impact these relationships can have on your estate planning. So, through this blog post, we aim to provide valuable insights and knowledge regarding the question that may be on your mind: “Can my de facto make a claim on my estate and what can a de facto claim?”
What is a de facto relationship?
First, let’s look at the nature of a de facto relationship as determined by the law.
The Family Law Act 1975 (Section 4AA) defines a de facto relationship, in general terms, as a couple who may be of the same or opposite sex, living together on a genuine domestic basis.
Section 32DA of the Queensland Acts Interpretation Act 1954 (AIA) has a similar definition. The factors to be considered as detailed in the section include –
● The duration of your relationship
● The care and support of children
● Whether or not a sexual relationship exists
● Whether you have a shared residence
● The nature and extent of your common finances
● Whether you present yourselves to the public as a couple
In Queensland –
1. de facto couples can register their relationship as a civil partnership.
2. a “spouse” can apply for provision from a deceased person’s estate if the will (or rules on intestacy) do not adequately provide for the spouse; and
3. “spouse” includes –
(a) a person who was the deceased’s civil partner; or
(b) the person and the deceased were de facto partners within the meaning of section 32DA of the AIA for a continuous period of at least 2 years ending on the deceased’s death.
Now let’s explore various situations involving de facto relationships, inheritances, and wills.
You are in a de facto relationship and die without a will.
In Queensland, if you are in a de facto relationship when you die, your de facto partner is entitled to the same rights as a married person, which include:
● Your entire estate if you don’t have children.
● $150,000, household chattels and a share of the rest of your estate with your children being ½ if you have one child and 1/3 if you have 2 or more children
● The right to make a claim for further provision if the assets and percentage set out above are not “adequate”.
● The right to lodge a claim for worker’s compensation if it is a work-related fatality.
You are in a de facto relationship and die with a will.
When you create a will, you have the opportunity to specify the beneficiaries who will inherit your estate. This may include your de facto partner, family members, friends, or charitable organisations. The assets and specific instructions outlined in your will provide a clear roadmap for the executor to follow when administering your estate.
The executor appointed in your will is responsible for carrying out your wishes. They will manage your estate’s legal and financial aspects, ensuring your assets are distributed according to your wishes. Be sure to choose a trusted individual to fulfil this role, someone who will act in your best interests and honour the instructions outlined in your will.
However, it is important to note that having a will does not necessarily prevent a de facto partner or even a financially dependent ex-de facto partner from making a claim for further provision from your estate. An ex-de facto partner may also be able to challenge a will on the basis that the deceased did not have capacity to make the will or was unduly influenced by another person to make the will.
Want to guarantee your wishes are respected while your de facto partner’s potential claims are considered? Seek professional legal advice when drafting your will. An experienced estate planning lawyer can guide you through the process, ensuring your will reflects your intentions and minimises the risk of disputes or challenges.
Common factors considered in de facto estate claims.
Whether you die with or without a will, your surviving partner will essentially have to prove they were a de facto partner at the time of your death to claim your estate. Courts may consider the following factors (these were briefly discussed above, but let’s delve deeper below) in determining the extent of their entitlement to the estate.
● Duration of the Relationship: The length of the de facto relationship is often a key factor that courts consider. Generally, the longer the duration of the relationship, the stronger the claim a de facto partner may have on the estate. This factor helps establish the level of commitment and mutual reliance between the parties.
● Nature and Extent of Mutual Commitment: The courts examine the nature and extent of the commitment between the de facto partners. This includes factors such as living together, presenting themselves as a couple in public and sharing responsibilities and obligations. The more intertwined their lives are, the more weight it carries in determining the validity of a claim.
● Financial Contributions: The financial contributions made by each partner during the relationship are crucial in evaluating a de facto partner’s claim. This includes assessing both direct financial contributions (such as income, assets, or property) and indirect contributions (such as homemaking, child-rearing or supporting the other partner’s career). Courts consider the fairness of the financial division and its impact on the overall accumulation of wealth.
● Care and Support of Children: If there are children involved in the de facto relationship, the courts consider the care and support provided by each partner. This includes considerations such as their involvement in parenting, emotional support, and financial contributions towards the upbringing of the children. The welfare and needs of the children are given significant weight in determining the extent of a de facto partner’s claim.
● Overall Fairness and Justice: Courts strive to achieve fairness and justice in estate matters related to de facto relationships. They consider the specific circumstances and the individual merits of each case. The court’s primary objective is to reach an equitable outcome that is in line with the principles of justice, considering both parties’ contributions, needs and intentions.
Consult with an estate lawyer today.
If you are in a de facto relationship and want to draft your will, accordingly, consult with our team of estate lawyers today. Our succession team has years of knowledge and experience to guide you in drafting your will and ensuring your estate administration goes smoothly and benefits the people who matter the most to you.
Get in touch with us today for an initial consultation.
This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm, or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers takes no responsibility for any use of the information provided in this article.
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