After you die, can your partner contest your estate even though you are not legally married?
Posted on July 03, 2015
If your relationship is classed as a “domestic relationship” then the answer to that question is “yes.” With four in five Australian couples living together prior to being married, it is important to be aware of the law in this area.
So, what is a domestic relationship?
You are in a domestic relationship if one of the following applies to you:
- If you have been living with your partner in a close personal relationship continuously for 3 years;
- If you have been living with your partner in a close personal relationship for a total of 3 years within a 4 year period;
- You and your partner share a child together; or
- If a Court declares a domestic partnership existed in light of the length of your relationship, the degree of mutual commitment to one another, your degree of combined finances, whether you owned any property together, support and care offered to any children and the performance of household duties.
If you are in a domestic relationship and you die, what rights does your partner have in respect of your estate?
If you die with a valid will, your partner can contest your estate if they believe they have not been adequately provided for. If they are successful, this means that the Court has the power to change your will in favour of your partner.
If you die without a will, your partner is entitled to administer your estate. If you die without any children, your partner is entitled to your whole estate. If you had children, your partner would be entitled to $100,000 in addition to half of the balance of your estate. The remaining half would be split equally between your children.
In a recent South Australian case, the deceased died leaving an estate worth approximately $3.5m. He left his domestic partner $100,000 plus his interest in a property worth $500,000. The partner contested the estate and the Court awarded him $900,000 in addition to what he already received from the Will.
This case shows that the Court can change the terms of the will in order provide your partner with a bigger slice of your estate if they are persuaded it is right to do so.
Are you in a domestic relationship? Is your partner in your will? To ensure your will is up to date and provides certainty to your loved ones please contact Lynch Meyer Lawyers.