We are frequently asked by clients what the requirements are to be considered a spouse, or a de facto spouse in relation to a deceased estate.
This is important because a spouse or de facto spouse is eligible to make an application for provision against a Will where they have not been adequately provided for.
Who is considered a spouse?
When looking at a deceased estate, the following persons people are considered a spouse of a deceased person:
- the deceased’s husband or wife;
- the deceased de facto partner; or
- the deceased’s civil partner (which is a partnership registered under the Civil Partnership Act 2011 (Qld)).
What is considered a de facto spouse or partner?
To be considered a de facto partner for the purposes of making a family provision application, the deceased and the person must have been living together as a couple on a genuine domestic basis for a continuous period of at least 2 years ending on the deceased’s death.
What is a genuine domestic basis?
The Court considers a number of factors when deciding if two people are living together on a genuine domestic basis. These factors include:
- the nature and extent of their common residence;
- the length of the relationship;
- whether or not a sexual relationship exists or existed;
- the degree of financial dependence or interdependence, and any arrangement for financial support;
- their ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life, including the care and support of each other;
- the care and support of children;
- the performance of household tasks;
- the reputation and public aspects of their relationship.
There is no strict formula to determine whether a couple are living together on a genuine domestic basis. The Court weighs all of the above factors against one another to determine whether there is a de facto relationship. However, it is important to keep in mind that the Court has held that simply sharing a common residence is not enough to prove a de facto spouse relationship. There must be other indicators present to be considered living together on a ‘genuine domestic basis’.
It is important to note that gender is not a relevant consideration in relation to two people living together on a genuine domestic basis. This means that a de facto relationship includes a same sex couple.
If you have any questions with spouse or de facto spouse regarding deceased estates, please contact our team today.
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