What Rights Do De Facto Partners Have If Their Partner Dies Without a Will?
De facto partners do have rights under Australian intestacy law, but those rights aren’t automatic. If your de facto partner dies without a will, you’ll generally need to prove to the court that you were in a de facto relationship at the time of their death and that you meet the legal definition of a de facto partner under your state’s laws. This process can be complicated, slow, and costly.
Proving Your De Facto Relationship
De facto relationships are legally recognised in Australia, but intestacy law doesn’t presume you’re in one. You’ll need to provide evidence to the court that demonstrates:
- You were in a genuine domestic relationship with the deceased
- You were living together (or primarily living together)
- The relationship had a sufficient degree of permanence and commitment
- You were in that relationship at the time of death
The evidence might include shared financial arrangements, joint lease agreements, testimony from friends and family, or other documentation. What counts as sufficient proof varies depending on your state and the circumstances.
Complications and Delays
Even if you were clearly in a de facto relationship, complications can arise. Other family members might dispute the existence of the relationship or argue it didn’t exist at the date of death. If the deceased’s family contests your claim, the matter goes to court, which is expensive and emotionally draining during an already difficult time.
These disputes cause delays in obtaining a grant of letters of administration—the legal authority to manage the deceased’s estate. What should be a straightforward process can stretch out for months or years, during which time you may have financial difficulties and uncertainty about your position.
The Importance of a Valid, Updated Will
This is why having a valid, up-to-date will is absolutely crucial. If your de facto partner had created a will naming you as a beneficiary, there would be no uncertainty, no need to prove your relationship, and no risk of family disputes. Your inheritance would be clear and legally protected.
Similarly, if your circumstances change—you enter a de facto relationship, get married, or end a relationship—your will needs to be updated. An outdated will that doesn’t reflect your current relationship status can cause serious problems for the people you care about.
Avoiding Disputes at the Worst Possible Time
A will removes all this uncertainty. It avoids disputes at the worst possible time—when families are grieving and dealing with the practical and emotional challenges of a death. It protects your de facto partner and ensures they’re looked after according to your wishes.
If you’re in a de facto relationship, ensure you have a valid, current will that reflects your wishes and protects your partner from having to prove the legitimacy of your relationship to the courts.
Read the video transcript
De facto partners do have rights under intestacy law, but their entitlement is not automatic. They will generally need to prove to the court that they were in a de facto relationship as at the date of death, and that they meet the requirements of being a de facto under that state's law. Complications may arise and there may be delays in obtaining a grant of letters of administration, particularly if there are other family members that dispute the existence of the relationship or that it existed as at the date of death. Therefore, it is important to ensure that you have a valid will and that it is regularly updated if there are changes in your personal circumstances. A will removes the uncertainty and avoids disputes at the worst possible time.
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