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de facto spouse partner couple deceased estate wills lawyers brisbane queensland

Who is considered a spouse or de facto spouse?

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:

  1. the deceased’s husband or wife;
  2. the deceased de facto partner; or
  3. 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:

  1. the nature and extent of their common residence;
  2. the length of the relationship;
  3. whether or not a sexual relationship exists or existed;
  4. the degree of financial dependence or interdependence, and any arrangement for financial support;
  5. their ownership, use and acquisition of property;
  6. the degree of mutual commitment to a shared life, including the care and support of each other;
  7. the care and support of children;
  8. the performance of household tasks;
  9. 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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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Written by—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now