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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.

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Chloe Kopilovic

Written by—

Chloe Kopilovic

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