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De facto relationship entitlements after death

Feb 9, 2022 | Blog, De Facto

Losing a de facto partner is an incredibly difficult thing to go through, regardless of the circumstances. While it may be the last thing on the bereaved’s mind, there will come a time when the partner who’s left behind will have to figure out what they’re entitled to from their partner’s estate. 

To help make this process easier for those who have lost a loved one, we offer de facto legal advice, where we can take a closer look at what exactly you are entitled to after your partners death. 

De facto relationships explained

Before we look at a partner’s entitlement, it will be helpful to define what a de facto relationship is exactly. Under the law, a de facto relationship is defined as a relationship between two adults who live together as a couple and are not married to one another or related by family. 

The Property (Relationships) Act 1984 further specifies that all aspects of the relationship may be taken into account when determining whether or not it is de facto. That includes:

  • The duration of the relationship,
  • The nature and extent of common residence,
  • Whether or not a sexual relationship exists,
  • The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
  • Ownership, use and acquisition of property,
  • The degree of mutual commitment to a shared life,
  • The care and support of children,
  • The performance of household duties,
  • The reputation and public aspects of the relationship.

If you are deemed to have been in a de facto relationship then you will have essentially the same rights as a married couple would in the event of a death. That is, if the relationship existed at the date of death and had been ongoing for at least two years. 

Lawyer explaining to client. De facto relationship entitlements after death

A de facto partner’s rights under an intestate estate

If your partner dies without a will, this is called ‘dying intestate’. Under these circumstances, their estate will be apportioned under the Succession Act, which applies to you if you’re married or in a domestic partnership (which includes de facto relationships). 

Under intestate rules, you will be entitled to your partner’s entire estate in the event that:

  • They have no children.
  • They only have children with you. 

If your partner does have children from a past relationship, those children may be entitled to some of the estate. You may receive your partner’s personal effects, a statutory legacy, and one half of the rest of the estate. Make sure you speak to us about wills and deceased estate law support.

A de facto partner’s rights when a will exists

The matter can actually be more complex in some instances if a will exists. If the de facto partner deems that the provision in the will is not sufficient, they may be able to challenge the will in court. Surviving children of the deceased partner can do the same. 

If the court deems that the will provides inadequate provisions for any party involved, they can pass down an order to alter its terms. When making this decision, the court will take into account a number of factors including:

  • Relationships with family members. 
  • The nature and value of the estate. 
  • The financial resources and needs of interested parties. 
  • Any contributions interested parties made to the welfare or estate of the deceased. 

All claims have unique circumstances and will be reviewed on a case-by-case basis by the courts.

Comforting loved one, holding hands.

How to prove you were in a de facto relationship

If a will does not exist, you may have to prove that you are in a de facto relationship in order to receive your entitlements. To do this, you may have to present evidence that speaks to the:

  • financial aspects of the relationship,
  • nature of the household,
  • social aspects of the relationship,
  • presence or absence of a sexual relationship, and
  • nature of the commitment.

Suitable proof may include documents such as leases, mortgage applications, utility bills, joint bank accounts and social proof of the relationship. We can help you further with proving your relationship andde facto legal advice.

What to do next

If the worst happens and your partner passes away, it’s always best to get expert advice right away to make sure the process is stress free – and that you receive what you’re legally entitled to. 

Get in touch with Testart Family Lawyers and we’ll help you navigate the law at this difficult time.