Do I Need a Will If I’m Planning to Leave Everything to My Partner?

You might expect it to be relatively straightforward, right? That dying without a Will would trigger a sort of default situation where the person you’re in a committed partnership with gets all you’ve got. But in Australia, the inheritance rights of a surviving partner are determined by a combination of laws, including the Family Law Act, as well as the deceased person’s Will. 

In the absence of a valid Will, you could be essentially putting the power in someone else’s hands. Generally speaking, the state government and the Supreme Court will be left with the task of dividing your estate according to intestacy rules. Other factors may also come into play, like how certain assets were acquired, and the types of assets in the estate.

Relationships by nature have their own nuances and the situation is rarely black and white, so we’re going to run through a few specifics below.

What is a ‘partner’ and what do they stand to inherit?

Partnerships can exist inside (and outside) of a number of frameworks, each with potentially different standings when it comes to an intestate inheritance hierarchy.

Married

Most of us are familiar with the act of marriage and the legally-binding nature of this type of relationship. Usually referred to as a ‘spouse’, ‘husband’ or ‘wife’, you are deemed to be ‘married’ to someone if you held one of those titles at the time of their passing. As a general rule, the spouse stands to inherit most (or all) of the estate (after any debts are settled) if there is no Will, especially if the deceased is not survived by any children.

If there are children involved – from the current or even a previous relationship – things may not be as clear-cut. In this case, assets would be distributed as the courts see fit, which can sometimes result in an unsatisfactory outcome. This is not to mention that the costs and time associated with making an application to administer an estate without a Will can, and often do, outweigh the costs of preparing a basic Will in Australia. You know what to do… don’t you? (wink wink).

De facto

Possibly the slickest-sounding label for lovers, de facto is derived from the Latin ‘of fact’, which shifts the focus to what the relationship is in actuality. Broadly, the de facto (or domestic) relationship is between two people who are not married to each other and are not blood related, but live (or have lived) together as a couple on a “genuine domestic basis” (i.e. they were more than roomies). The de facto spouse often basically has the same inheritance rights as a married spouse (i.e. they will inherit everything if the deceased had no children). 

However, before your de facto partner can benefit from your deceased estate if you haven’t written a Will, you typically need to:

• Have lived in a domestic or de facto relationship for at least two years, including immediately before death, or
• Have a child together, or
• Have formally registered your relationship.

Divorced / Ex-spouse

Technically, this would indicate the absence of a partnership between two people who were previously in a relationship. But there are still important things to take into account if you happen to be a divorcee or someone’s ex. Most essentially, we note that divorce does not automatically revoke or nullify a person’s inheritance rights in Australia. To prevent an ex-spouse from inheriting – or maybe, to ensure they do – it is crucial to update your Will after divorce so that it’s aligned with your current life circumstances. 

Partnership in Property

It’s not uncommon for partners to purchase property together (like a family home!), and there are different ways they may choose for ownership to be divided. Two types of ownership in particular – whereby property is held either as ‘joint tenants’ or ‘tenants in common’ – will impact how this property is dealt with if an owner passes away. In a joint tenancy, all tenants have equal ownership and interest in the property. As part of a tenancy in common, two or more people are co-owners of a property, with defined shares that they can dispose of as they wish.

An important difference is that a right of survivorship applies in the case of a joint tenancy. This means that the death of one of the joint tenants results in the passing of the property to the surviving counterpart (regardless of the existence of a Will). The right of survivorship does not apply in the case of a tenancy in common, making it a more attractive option for co-owners who would prefer to freely sell or bequeath their share to a specific partner, who may or may not be the person they initially entered into the property ownership agreement with. 

Personal Belongings 

Personal items – sometimes referred to as personal effects or ‘chattels’ – can have important sentimental value (to multiple people!). Items like jewellery, valuable antiques or artworks can also have significant monetary value. Because of the very personal, individual nature of such items, family members can hold strong attachments, and problems can arise for executors or administrators in distributing a deceased estate. 

Different states define personal effects differently, and there is no way of guaranteeing that they will all necessarily go to your spouse. Uncertainties over these valuable objects can exist even if a Will was left, so you can just imagine the situation if one wasn’t!

Wrap up

In the current climate, we strongly recommend creating a Will and following all the relevant legal requirements if you do want your partner to inherit everything when you die. In other words, if you want the best for your boo and you want to be the only one deciding the fate of your fancy stuff, take it from us and write your Will online in just 15 minutes.

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, medical, accounting or tax advice.