Defacto partners & deceased estates

The legal issues for de facto partners in WA


Who is a de facto partner of a deceased person?

The de facto partner and the deceased person must have lived in a marriage-like relationship for at least 2 years immediately before the death of the person. This includes same-sex relationships.

The term 'marriage-like relationship' is not defined by any legislation in WA. To determine whether the relationship was marriage-like, the WA courts take into account many indicators including:

  1. the length of the relationship between them;
  2. whether the 2 persons have resided together;
  3. the nature and extent of common residence;
  4. whether there is, or has been, a sexual relationship between them;
  5. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  6. the ownership, use and acquisition of their property (including property they own individually);
  7. the degree of mutual commitment by them to a shared life;
  8. whether they care for and support children;
  9. the reputation, and public aspects, of the relationship between them.

Is the person a de facto partner or girlfriend/boyfriend?

As a result of the different factors which the WA courts take into account, there may be no simple answer to determine whether a person is a de facto partner or their relationship would be considered more like a girlfriend/boyfriend relationship even if the people were living together. This is because people tend to live together prior to marriage, even if there is no firm plan to marry in the future. There may be no intention by a couple to marry or have children. There may also be indications that the relationship was at an end, even though the couple continued to live together.

Is a de facto partner entitled to a share of a deceased estate?

Yes. The de facto partner is entitled under section 14 of the Administration Act 1903 to the deceased person's property as though the de facto partners were married. The situation is more complex if the deceased person was (i) married at the time of the death or (ii) had more than one de facto partner.

A de facto partner also has a right to commence a family provision (inheritance) claim in the WA Supreme Court.

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