This can be an issue when the deceased did not write a will clearly expressing their intentions towards family and friends. A de facto spouse may have to first prove that they were, indeed, the de facto partner of the deceased.
In some States, the law defines a de facto spouse as someone who was the sole partner of the deceased person and not a partner in another de facto relationship. This includes same-sex couples.
The following issues will determine whether or not a relationship qualified as ‘de facto’:
- how long the relationship lasted
- how long the couple cohabited
- was there a sexual relationship
- what level of financial dependence existed between the parties
- was property owned, used and acquired
- was there evidence of a mutual commitment to sharing their lives
- how were household duties performed
- how was the relationship perceived by others outside the relationship
A will can still be challenged by a de facto spouse and/or children if there was no provision for them or if they believe inadequate provision was made. This situation is the same as if it involved a married spouse and/ or children.
If there is no will and the estate is being disposed of by an Administrator, there is a clear formula for the distribution of assets to a de facto spouse and/or children. It is basically the same as that which applies to a married spouse and/or children – in other words, they have the same rights.
The de facto spouse inherits everything if there are no children.
If there are children, the de facto spouse and/or children will inherit everything. When the value of the estate – except for household goods such as furniture, kitchenware, appliances, consumables, pets and so on – does not exceed a prescribed amount, the spouse inherits everything. Currently, the prescribed amount is set at $200,000, subject to change. If the value exceeds that amount, then all household goods, the prescribed amount and one-half of everything else is inherited by the spouse and the remainder of the estate – the ‘residue’ – is inherited by the children.
If there are children, but the de facto spouse is deceased, the children get an equal share of the whole estate. If a child of the deceased is not alive and has left children of his or her own, they inherit that share of the estate.
If neither a de facto spouse nor children are alive, than the Administrator must search for the nearest living relative. If there are none, the estate goes to the government.