In Australia, the inheritance rights of a surviving spouse are determined by a combination of laws, including the Family Law Act and the deceased person's Will. Things can however get complicated if a person dies without a valid Will; leaving the state government and supreme court the power to divide the whole estate according to intestacy rules.
This can lead to contentions when a current spouse inherits the entire estate, leaving the wider family- including surviving grandparents, aunts and uncles, children and first cousins-with no rights to acquire property or personal effects held in the family for generations. Below, we cover exactly what a spouse is entitled to under current laws, covering:
Inheritance Laws for living relatives vs surviving spouse or next of kin
Impact of dying Intestate on how an estate is distributed
The Family Law Act: For surviving spouses & children
The Family Law Act is the main piece of legislation that governs the rights of spouses and partners in Australia. This act provides for the division of property and assets in the event of a relationship breakdown or death; entitling a spouse or domestic partner to a share of the deceased person's estate, including any superannuation or life insurance policies.
Under this same Family Law Act, a child is considered a dependent of the deceased person and may also be eligible for a share of their estate if they were dependent on the deceased person for financial support.
In the absence of a valid Will, the inheritance rights of spouses and the consequent distribution of a deceased estate are determined by the rules of intestacy.
Under the rules of intestacy, a surviving spouse or partner is entitled to a certain percentage of the deceased person's assets, depending on the circumstances. If the deceased person was survived by a spouse and children, the spouse is entitled to a share of the assets equal to two-thirds, and the children are entitled to the remaining one-third.
Given that children or previous spouses may be left without rights to sentimental, family possessions if you happen to die whilst married to someone else, it's important to have a plan to ensure they get the provisions they need.
This becomes especially important when there's more than one partner or children to consider in the estate distribution amongst a blended family.
Writing your will ensures that family assets or property are not automatically passed down to a new partner if you die with an intestate estate. And it allows you to support wider family members, such as step-children or non-biological dependents. Crucially, this also avoids a drawn-out probate process from challenges to the will.
If the deceased person was survived by a spouse and no children, the spouse is entitled to the entire estate. If the deceased person was not survived by a spouse or children, the assets will be distributed to their next of kin.
In the presence of a valid will, the inheritance rights of spouses in Australia are determined by the terms of the will. If a spouse is named as a beneficiary in the will, they are entitled to inherit the assets and property specified in the will.
However, it is important to note that a will can be challenged if the spouse or partner feels that they have not been adequately provided for. Under the family provisions law, children of the deceased can also make these challenges if they feel the original distribution outlined in the will is inadequate- for example if a surviving second partner receives a large proportion of the family estate and leaves the biological family lacking.
In these contested cases, the Supreme Court will consider the financial needs and circumstances of the child and may award a larger share of the estate if deemed appropriate.
In addition to the assets and property specified in the will or distributed through the rules of intestacy, a surviving spouse or partner may also be entitled to a share of the deceased person's superannuation and life insurance policies.
Under the Superannuation Industry (Supervision) Act, a surviving spouse or partner is entitled to a share of the deceased person's superannuation if the deceased person died after 1 July 2017. This share is determined by the terms of the superannuation policy and the laws governing superannuation in Australia.
Similarly, life insurance policies are governed by the terms of the policy and the laws governing life insurance in Australia. A surviving spouse or partner may be entitled to receive a payout from a life insurance policy if the deceased person was the policyholder and the spouse or partner was named as the beneficiary.
In conclusion, the inheritance rights of spouses in Australia are determined by a combination of laws, including the Family Law Act and the deceased person's will. If a person dies without a will, the government laws of intestacy apply. And, in the presence of a will, the terms of the will govern the distribution of assets and property to the wider family.
Writing a will allows you to distribute your estate according to the specifics of your relationships with siblings, aunts and uncles, parents, grandparents or previous married partners. The administration of a planned out estate which distributes assets according to who will benefit and have the most interest in them, can avoid challenges to the will in court.
Safewill offers an easy and flexible platform from which to write and update your will to provide for your surviving spouse and wider family. You can outline how you'd like everything from property to investments to be distributed, and reflect any changing circumstances in easy updates to your will at any point.
We provide expert legal support at each step of the way- with helpful tips to ensure the validity of these legal documents, open up family communication and avoid future challenges to your asset distribution wishes.
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