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Application of the Intestacy Rules: Defacto partners – Eligibility to Contest a Will and Rights Under the Intestacy Rules

While there is often no distinction made between a marital relationship and a defacto relationship

(one where the partners are not legally married) in certain areas of the law, the same cannot be said

of their treatment in the laws of wills and estates.

Contesting a Will

Usually a spouse or dependent spouse have similar rights to contest the Will of their deceased

partner. If a live – in partner does not technically qualify as a de facto partner, they may end up with

no rights to claim from the estate whatsoever.

Intestacy Laws: No Will

The status of a spouse by marriage is unassailable – either you are, or are not, legally married. If your

spouse dies without a will, then a married partner will inherit the estate either wholly, or if there are

children of the marriage, then usually in shares with the children.

If you are a defacto spouse you will not be entitled to a penny under the Intestacy Rules.

What is a Defacto Spouse?

A defacto spouse is subject to a legal definition of the relationship, and this usually requires the

parties to have lived together for two or more years before the death, as partners and or on a

domestic basis. Frequently there are obvious factors which render the relationship a defacto

marriage- joint assets, pooled finances, children etc.

Sometimes the relationship is less easily defined- the couple may not live together, have any

children together and may keep their finances separate. However, this does not necessarily mean

that the couple are not in a defacto relationship. Sometimes there is an element of discretion or

secrecy, where not all aspects of the relationship are made public.

In these circumstances, how does the Court view these relationships when asked to decide whether

or not the relationship is a defacto relationship?

Typically, the Court looks at a range of factors to determine whether a genuine defacto relationship


These include:

 Domicile

 Finances

 Reputation

 Sexual Relationships

 Children

The defacto spouse has virtually no ?? rights to an unmarried partner.

However sometimes various additional factors help to clarify whether a defacto relationships exists.

Sometimes people will point to the fact that each party was drawing a pension at the single rate to

discredit a relationship claimed to be defacto. However, this is rarely held by the Court to be

determinative of a relationship’s status as defacto. The view which Centrelink takes is often not so

broad, and in some cases can result in action being taken for overpayment.

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/DR21198/AL/JJ/201-/AU/C/XXX/- /MHD/QL/?