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Former de facto partners – impacts on your Will

Many people assume that just because you are not married to your partner, there are no impacts to your Will, should you separate in the future.

Unfortunately, this assumption is incorrect.

What constitutes a de facto relationship?

A de facto relationship is where a couple, of the same or opposite sex and who are not legally married, live together in a genuine domestic relationship for a period of two years.

There is no hard and fast rule to determine whether a couple have been living together on a genuine domestic basis. 

Rather, a court takes into consideration a number of circumstances outlined in section 32DA of the Acts Interpretation Act 1954 (QLD).

The existence of a de facto relationship is sometimes difficult to determine and may have significant impact if not properly addressed in your estate plan.

What if I have separated from my de facto partner? 

The Succession Act 1981 (Qld) (Act) describes a former de facto partner as “the person who was the de facto partner of the testator (i.e., Will maker) immediately before the ending of the testator’s de facto relationship.”

In Queensland, amendments to the Act which came into effect in June 2017, mean that the end of a de facto relationship has the same effect as a divorce on a Will.

Under section 15B of the Act, unless a contrary intention appears in the Will, the end of de facto relationship will revoke the following:

  • any distribution to a former de facto partner;
  • appointment of a former de facto partner as executor, trustee or guardian; and
  • the grant of a power of appointment (in relation to a trust) in favour of a former de facto partner.

What does this mean for me?

If you have made a Will that does any of the above, and you have since separated from your de facto partner, it is important to update your Will to account for your new circumstances before you die.

Otherwise, you run the risk of your Will being partially revoked and not accurately reflecting your wishes.

Can my former de facto partner make a claim against my estate?

The following people are entitled to bring a family provision application against your estate, if they feel they have not been adequately provided for:

  • spouse (including de facto spouse);
  • children (including stepchildren); or
  • dependants.

This means that if you have separated before your death, your former de facto partner will not be considered eligible to bring a family provision application against your estate.

In Queensland, although a former de facto partner is not expressly listed as an eligible applicant, the Act still provides that certain ‘dependants’ of the deceased may be eligible persons.

A ‘dependant’ is a person who was being wholly or substantially maintained or supported by the deceased person at the time of his or her death. This includes the parent of a surviving child under the age of 18 years, who is also a child of the deceased.

Therefore, a former de facto partner could potentially fall into the category of an eligible persons as a ‘dependent’.

Accordingly, it is important to keep accurate records of your relationships regarding matters such as dates of living together, joint and individual property and how income is used between you and your de facto partner.

Is there a difference between a de facto partner and civil partner?

In Queensland, you can register a de facto relationship through the Registry of Birth Death and Marriages, a process which results in a civil partnership. This can be done as a sign of commitment or for couples who do not wish to get married but want legal acknowledgement of their relationship. 

However, a registered relationship is not the same as a marriage. A civil partnership ends if either party marries or passes away.   

Under section 5AA(2)(c) of the Act, a deceased’s dependent former husband or wife or civil partner is noted within the definition of ‘spouse’.  

Therefore, a dependent former civil partner will be considered an eligible person to make a claim against your estate.

Can my de facto (or civil) partner’s children contest my Will?

Another way in which a de facto/ civil relationship is treated the same as a marriage, is in relation to the treatment of stepchildren.

If your de facto partner (or civil partner) has children from a previous relationship, they will be considered your stepchildren for the purposes of making a claim against your estate.

This means that a de facto (or civil) stepchild is just as entitled to make a claim for provision from your estate as a biological child – provided that they can show that their parent was still in a de facto relationship with the deceased stepparent at the time of death.

What should I do if my relationship changes?

Whether it is the start or end of a relationship, it is important to seek advice on how these changes may affect your Will and how to minimises the potential for any future disputes and claims to your estate.

If you have any questions surrounding how your current relationship status may affect your Will, or need help updating your estate plan, please feel free to contact us.

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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—

Duncan MacDougall

Call 07 3035 4077 to speak with our team now