De Facto Relationships and Inheritance Entitlements

Do couples in a de facto relationship have the same entitlements as a married couple if one spouse dies without a will?  In theory they do however, in practice, a de facto spouse will have to jump through some additional hoops to realize their entitlements.

Under the intestacy provisions in the Succession Act 2006 (NSW), a de facto spouse has the same entitlements to inherit as a married spouse however, the spouse’s status must be proved to the Court.  A married spouse in this situation can simply produce their marriage certificate but, unless the relationship is registered, a surviving de facto spouse will usually have to rely on affidavit evidence to prove the status of their relationship.  This means that they will have to disclose detailed and personal information to the Court and even then, it will be up to the Court to decide whether a de facto relationship exists.  This situation can make it easier for someone to challenge the status of a de facto spouse, whereas it’s difficult to dispute the existence of a legal marriage.

It is possible in NSW to register a relationship with the Registry of Births Deaths and Marriages.  Partners in a registered relationship can be issued with a certificate which can be used prove their relationship status.

Properly drawn wills can also protect de facto spouses, whether their relationship is registered or not, avoiding the need for the survivor to prove the validity of their relationship at what is already a difficult and distressing time.

If you would like advice about your particular circumstances, please contact Althea at Hornsby Wills and Probate. Phone: 0410 485 277. Email:  althea@hornsbywillsandprobate.com.au

More information about registering relationships is available at:

http://www.bdm.nsw.gov.au/Pages/marriages/relationship-register.aspx

Do you need a will?

If a person dies without making a will (known as dying ‘intestate’) the person or people who inherit their property will be determined by provisions in the Succession Act 2006.  Generally this will be the deceased person’s spouse, children or other close relatives.  There are many cases, however, where the intestacy provisions will not suit a family’s needs.

Particular categories of people who should consider preparing a will include:

  1. Single people and childless couples. If you have no spouse or children, your wishes about who inherits your property may be quite different to what is set out in the intestacy provisions.
  2. Parents of young children. Preparing a will enables you to appoint a testamentary guardian to care for your children and a trustee who will manage any inheritance for them.
  3. Separated couples.  Until a divorce is final, a separated spouse is still entitled to inherit if there is no will.
  4. Blended families. A will can take account of an individual family’s needs and is especially important where there are children of prior relationships.
  5. Elderly people who may have particular wishes about sentimental items or several generations of descendants to allocate inheritances amongst.
  6. People with no living relatives. If you do not have any relatives alive to inherit your property, it may go to the state.

If you would like some advice about your own circumstances, contact Althea at Hornsby Wills and Probate.  Ph: 0410 485 277.  Email: althea@hornsbywillsandprobate.com.au