De facto partners & deceased estates

The legal issues for de facto partners in WA

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Listen to Dr Robson discuss de facto rights and entitlements


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

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.

What is a de facto partner's entitlement from a deceased estate?

If the deceased died prior to 29 March 2022, the de facto spouse is entitled to at least the first $50,000, depending upon the relationship of the surviving relatives to the deceased.

If the deceased died on or after 29 March 2022, the de facto spouse is entitled to at least the first $472,000, depending upon the relationship of the surviving relatives to the deceased.

Who is a de facto partner of a deceased person in WA?

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.

Does the WA law extend to same-sex couples?

Yes. The definition of a de facto partner does extend to a person of the same sex as a deceased person and therefore the de facto person is entitled under section 14 of the Administration Act 1903.

Was the relationship continuing at the date of the death?

It is a requirement that "the de facto partner and the intestate lived as de facto partners for a period of at least 2 years immediately before the death of the intestate". It will therefore be necessary to show evidence of the relationship and that the relationship had not ended before the death of the intestate person.

The evidence to show that the relationship was continuing at the date of the death of the intestate person will vary from case to case. For example, if the de facto couple did not live together at the time of the death, the circumstances may have made that impossible because one partner was living in a nursing home, or was living and working overseas.

Family provision (inheritance) claims by de facto partners

Whether a de facto partner can commence a family provision claim may depend upon proof that they were a de facto partner and therefore have an entitlement to the deceased estate's assets. It will be necessary therefore to consider carefully before commencing any inheritance claim whether there is sufficient evidence to prove that there was a de facto relationship at the date of the death of the deceased.

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