Brittany Duregon

partners holding hands

Whether or not you and your partner are married, your long term relationship will have an impact on your legal affairs, particularly when it comes to dealing with a deceased estate.

Whereas some couples in a domestic relationship will decide to register with the Office of Births, Deaths and Marriages under the Relationships Register Act 2016, some couples choose not to take this step, while others may simply be unaware that this option exists at all. However, these arrangements can have real consequences for what happens with a person’s estate if they die.

In the situation where someone passes away without a Will, they are said to have died intestate. This means their estate will be distributed in accordance with the laws of intestacy as set out in the Administration and Probate Act 1919.

There is a common misconception that if a person dies without a Will, their spouse will receive their entire estate. However, this is not necessarily the case.

Under the Act, when the deceased is survived by a spouse or domestic partner but has no children, the partner will be entitled to receive the entire estate.

However, this situation is slightly more complex where there are children involved. If the deceased is also survived by children, the spouse or domestic partner is entitled to receive the first $100,000 and half the balance of the estate. The children will then receive the remainder, which is divided equally between them.

The situation can become even more complicated in circumstances where the deceased had commenced a new relationship before finalising their divorce from a previous spouse. In such situations it is particularly important to seek specialist legal advice.

For a domestic partner to administer an estate, they must make an Application for Letters of Administration with the Probate Registry of the Supreme Court and as part of this process the person will need to prove their status as the domestic partner of the deceased.

Likewise, if a domestic partner wishes to bring a claim against an estate under the Inheritance (Family Provision) Act 1972, they will first need a formal declaration regarding their relationship with the deceased.

If the relationship has not been registered under the legislation this process is even more onerous, as the surviving partner will need to make an application to the Court seeking a declaration of domestic partnership pursuant to the Family Relationships Act 1975.

To make this declaration, the Court must be satisfied that the couple had been living in a close personal relationship, combined with one of the following situations:

  • They had been living together for three continuous years preceding the person’s death
  • They had lived together for a total of three out of the four years preceding the death
  • They had a child together

Even where these requirements are not met, however, in some circumstances it may be possible to obtain a declaration in the interests of justice.

When considering whether to make a declaration, the Court must take into account all of the circumstances of the relationship, including the following:

  • the duration of the relationship
  • the nature and extent of common residence
  • the degree of financial dependence and interdependence, or arrangements for financial support
  • the ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • any domestic partnership agreement made under the Domestic Partners Property Act 1996
  • financial agreements made under the Family Law Act 1975 (Cth)
  • the care and support of children
  • the performance of household duties
  • the reputation and public aspects of the relationship

Dealing with the death of a partner is an emotionally draining ordeal. On top of this, having to work through the process of obtaining a declaration of domestic partnership to then bring an Application to the Probate Registry only adds to the burden of the experience.

This is why it is so important to have a valid and up-to-date Will, which would render such steps unnecessary.

Making or updating a Will is a relatively simple process that the expert team at Lindbloms Lawyers can guide you through. Contact us today to find out more.