Scroll for more

spouse de facto relationship will deceased estate litigation administration lawyers queensland

Who is a spouse or de facto partner of a deceased?

I have received a number of enquiries lately in relation to a partner of a deceased wanting to either apply for Letters of Administration on Intestacy for their deceased partner’s estate or to make a claim against the estate. To be the spouse of a deceased, consideration must be given to your specific circumstances. I have outlined who may be considered a spouse, below.

Who is a spouse of the deceased?

Section 5AA of the Succession Act 1981 (Qld) states that a ‘spouse’ of a deceased is:

  1. a husband or wife; or
  2. a de facto partner.

Who is a de facto partner of a deceased?

Section 32DA of the Acts Interpretation Act 1954 (QLD) states that a person is considered to be in a de facto relationship with another person if they:

  1. are not legally married to each other;
  2. are not related by family; and
  3. have been living together as a couple on a genuine domestic basis.

What does ‘living together on a genuine domestic basis’ mean?

There is no hard and fast rule to determine whether two people 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) which include:

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. the care and support of children;
  8. the reputation and public aspects of the relationship.

The court will balance the above circumstances against one another to make a determination as to whether two people have been living together on a genuine domestic basis.

Do you have to be living together at the time of the deceased’s death?

Yes. Section 5AA(2)(b)(i) of the Succession Act 1981 (Qld) clearly states that in order to be a ‘spouse’, the person and the deceased must have been living together on a genuine domestic basis for a continuous period of at least 2 years ending on the deceased’s death.

If you are unsure about whether you would be considered the spouse of a deceased, please do not hesitate to contact me to discuss your matter further.

Share to your network

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.

Subscribe to our Newsletter

Subscribe to our newsletter to get updates on everything Wills, Estates and Probate.

Written by—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now