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.
When looking at a deceased estate, the following persons people are considered a spouse of a deceased person:
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.
The Court considers a number of factors when deciding if two people are living together on a genuine domestic basis. These factors include:
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.