“Can my de facto claim my inheritance?” We explore that question here and look into de facto rights to property after death, including ex-de facto partners. Read on to find out if your de facto can make a claim on your inheritance.

What is a de facto relationship?

First, let's look at the nature of a de facto relationship as determined by the law.

A de facto relationship is defined in Section 4AA of the Family Law Act 1975 as a couple, who may be of the same or opposite sex, living together on a genuine domestic basis. In Queensland, de facto couples can register their relationship.

When deciding if you are considered de facto for the purposes of inheritance law in Queensland, the law will take into account several factors, such as:

  • The duration of your relationship, in most cases for an uninterrupted period of no less than two years unless you have children together.
  • The support of any children under your care.
  • Whether you have a shared residence.
  • The nature and extent of your common finances.
  • Whether you presented yourselves to the public as a couple.

Now let's look at various situations involving de facto relationships, inheritances and wills.

Can I de facto claim my inheritance?

You are in a defacto relationship and die without a will

In Queensland, in regard to de facto rights to property after death, a de facto couple are considered spouses under the law of intestacy — this means your property will be treated as marital assets.

The law of intestacy is a set of rules which states if you die without a will, your estate will first go to your next of kin, which is your spouse or de facto partner, and children or grandchildren. 

This means, if you are in a defacto relationship when you die, your de facto partner is entitled to the same rights as a married person, which includes:

  • A share of an estate with the next of kin.
  • The right to contest the will. 
  • The right to lodge a claim for workers compensation if it is a work-related fatality.

Your surviving partner will have to prove that they were a de facto spouse at the time of your death.

You are in a de facto relationship and die with a will 

If you have a will in place, your wishes as to who you would like your estate to go to and the person you have appointed as executor will be followed. 

Can my ex take my inheritance? 

You separate from your de facto partner and die during the process of separation

In Queensland, the end of a de facto relationship has the same effect on your will as a divorce: any gift left to your former spouse is automatically revoked. If you had appointed your de facto as executor or trustee of the will, these roles are also revoked.

It's important to note, however, that when a de facto couple separates, an inheritance is subject to property settlement under the Family Law Act 1975. The laws dividing the joint asset pool during a separation in family law differ from those governing wills and inheritances. 

The judge overseeing the trial in family court has substantial freedom in handling inheritance matters, and each situation must be evaluated based on its unique circumstances.

In this case, if you pass away during the process of separation, it may be possible for your ex-partner to receive part or all of your inheritance.

You are no longer in a relationship with your ex-de facto at the time of death

Whether you have a will or not, there are some circumstances where your former partner may make a Family Provision application to benefit from your estate. 

The Succession Act 1981 (Qld) (Succession Act) allows courts to award family members or dependants a portion of the deceased's estate, even though the will made no provision or an inadequate provision for the family member.

In this situation, your ex-de facto would need to be receiving or entitled to receive maintenance from you as a dependent. They would make the application on the basis that you failed to make adequate provision for their proper maintenance and support in your will.

The court takes a variety of factors into consideration and a decision is made based on each individual circumstance. 

If you'd like to know more about de facto rights to property after death and de facto inheritance law in Australia, we're here to help with your family law matter. Reach out to our Bradley & Bray team on info@bradleybray.com.au.