Can Your Ex-De Facto Partner Inherit Under Your Will?

By 6 April 2020 Family Law

As qualified family lawyers, we often help clients facing challenging, if not devastating life events. These include the death of a loved one, and the end of a marriage or de facto relationship. In some cases, our clients are dealing with the effects of both. One question we sometimes get in this context is whether someone has the right to any inheritance made in his or her former de facto partner’s will. Here are a few things to keep in mind.

The legal definition of a de facto relationship

To begin with, it is essential to understand how the law classifies de facto relationships. As per the Family Law Act of 1975, this type of relationship:

  • Is one in which two people;
  • of the same or opposite gender;
  • have been co-habitating as a couple;
  • for valid reasons; and
  • for a specified period.

A relationship can be legally classified as de facto after two years together, or if the people involved have a child together. The legal classification of a de facto relationship may occur sooner if: 1) one of the people involved has made significant contributions to the relationship; and 2) if failure to recognise a de facto relationship would create significant injustice.

The Succession Act 1981 (Qld) (“the Act”) also stipulates that:

  • The  people involved;
  • lived together as a couple;
  • on a “genuine domestic basis”;
  • for an uninterrupted period of no less than two years;
  • at the time when one of them passed away.

Relevant legal changes

So what happens if you and your de facto partner broke up before you passed away, but you never changed your will and now he (or she) is trying to claim his or her share of the inheritance? The answer may surprise you, because Queensland law has viewed de facto relationships the same way as marriages since June 5, 2017. Consequently, dissolution of the relationship results in automatic revocation of a de facto spouse’s appointment as executor of the will. The same applies to any gift made to them through the will.

However, it should be noted that even though they are now treated equally, there is still a key difference between how traditional marriages and de facto relationships are lawfully terminated. Accordingly, there is a key difference in how lawful termination of a traditional marriage and a de facto relationship affects an ex-spouse or ex-partner’s standing in a will. Contrary to popular belief, revocation of applicable provisions to a former husband or wife does not kick in when legal separation begins. Instead, it can only occur after a formal divorce order is issued by the Family Court.

But no formal order/decree is needed for the lawful termination of a de facto relationship.  Therefore, revocation of applicable provisions to a former partner in a will takes effect upon termination of cohabitation.

Challenging your will

Of course, all of this begs a question. Can your former de facto partner challenge your will? In Queensland, the answer is most likely, “no”. This is because Queensland law does not recognise a de facto partner as an “eligible person”.

But again, there is a catch. Section 40 of the Act stipulates that some of your “dependants” may be classified as eligible persons. In this context, a dependant is legally defined as someone that you were supporting in some degree up until the time of your death. Of importance here is that this definition also includes “the parent of a surviving child who is less than 18 years of age and who is also a child of the deceased.” This means that your former de facto partner could be allowed to challenge your will if the two of you had a child together who was a minor when you died.

Establishing the existence of a de facto relationship

If your former de facto partner is allowed to challenge your will and decides to do so, he or she may have to provide proof of the relationship. Specifically, he or she must be able to show that you were not legally married or related by family. Furthermore, he or she must be able to show that you lived together in a “genuine domestic relationship”.

To reach a determination about the latter, a court usually takes the following into account:

  • How long the two of you were in the relationship;
  • whether you had any children together;
  • the circumstances in which you lived together;
  • whether you engaged in intimate relations;
  • the extent to which you relied on one another financially;
  • property acquisition and ownership.

What if you want the provisions in your will to stand?

Not all relationships end on a bad note. In fact, a lot of former spouses or partners stay friends for years after their marriage or de facto relationship ends. If you and your former de facto partner have remained on good terms, you may want any provisions made for him or her in your will to remain in effect even though you are no longer together.

There is only one way to guarantee this will happen. You must make a stipulation in your will indicating that you want your former spouse’s appointment as executor to stand, and any gifts made to him or her to be allocated as per your wishes. Failure to do so will result in automatic revocation of any provisions/gifts made to your former spouse in your will when you split up.

If you have questions or concerns about this, or any related issues, don’t hesitate to contact the experienced family law team at Twohill Lawyers.