Since 2009, Australian family law has treated married couples and de facto couples essentially same, provided they meet the de facto criteria. In the event of a relationship breakup, they should have same rights when it comes to property settlements, spousal maintenance, parenting orders and child support. However, what happens when a de facto partner dies? and dies without leaving a Will? Robert Wood and Associates specialise in de facto family law in Melbourne, read on to find out why wills are important for unmarried committed couples.
What is a De Facto Relationship?
Defined under the Family Law Act 1975, a person is considered to be in a de facto relationship with another person if:
- the persons are not legally married to each other, and
- the persons are not related by family, and
- having regards to “all of the circumstances of their relationship”, they have “a relationship as a couple living together on a genuine domestic basis”.
The legislation provides additional criteria to further determine whether two people have “a relationship as a couple”. These include:
- The duration of the relationship – whether the parties have lived together for a period of 2 years or longer)
- The presence of a sexual relationship
- If there are any children of the relationship
- The extent and nature of shared residence
- The degree of financial dependence between the parties
- The degree of mutual commitment toward a shared life
- The reputation and public aspects of the relationship
Death Without a Will
Dying without a Will is known as dying “intestate” and this means that their Estate will be distributed according to intestacy rules outlined in the Succession Act. De facto partners of a deceased person have rights under intestacy law and are entitled to receive all or part of their partner’s Estate, provided they can prove they were in a “domestic partnership”. In order for a de facto relationship to be recognised for the purposes of domestic partnership, the relationship must meet the following criteria:
- the relationship has been in existence for a continuous period of two years; or
- the relationship has resulted in the birth of a child.
What If Intestacy Rules Don’t Apply to You?
If you were in a de facto relationship with your partner at the time of their death but do not meet the legal definition of a spouse under the intestacy rules, you may still be able to receive a distribution from the Estate by lodging a family provision claim as an eligible person. In this instance, you should seek legal advice from an experienced de facto lawyer as soon as possible to contest the distribution of your partner’s estate.
Challenging a Will
A de facto partner of a deceased person can make a family provision claim against the deceased’s estate regardless of the written intentions in the deceased’s Will, however, to do so they must satisfy some major criteria. They must also establish that the provision made for the de facto spouse in the Will was inadequate.
If you are an executor of a deceased estate, a de facto spouse who has been left with inadequate provision from the estate or you are in a de facto relationship and would like to prepare for the future, it’s wise to obtain legal advice that pertains to your particular circumstances. Get in touch with the de facto relationship solicitor Melbourne locals trust by calling Robert Wood and Associates today on (03) 9762 3877 or by making an enquiry online.
