Ex-de factos & your Will – Isn’t a property settlement enough?

The incidence of de facto relationships has been increasing for some time, and that trend is likely to continue. Since 2009, the legal regime for property settlement has been the same whether the separating couple had been married or living in a de facto relationship. However, the law doesn’t always treat married and de facto couples the same. The law relating to what happens to your assets after you die is one area where there are some differences.

This article explores what might happen if a de facto couple made Wills during their relationship leaving their assets to each other, then, as often happens, were forgotten and unchanged after the relationship ended.

Isn’t your property settlement enough?

Many people think that once they have divided up their assets, neither partner could have a financial claim on the other in the future (except, of course, for child support if that is relevant). Some people also think that, because they weren’t married, their ex-de facto has no future financial claim. Those assumptions aren’t always correct.

The laws dealing with Wills and inheritances are completely distinct from those relating to division of assets after a relationship breakdown. A family law property settlement does not change someone’s Will, nor can it necessarily prevent someone receiving a gift left to them in their ex-partner’s Will.

So, can your ex-de facto inherit?

The answer to this question will depend on factors such as whether you had a Will, what were its terms, how long you lived together, whether you and your partner had joint children, and any financial support being provided by the deceased to the former partner. The answer may also depend on where you live.

According to a recent Western Australian case, Blyth v Wilken, another relevant factor could be the precise words you used to refer to your ex-de facto in your Will.

That case dealt with a Will in which the deceased left his assets to his now ex-de facto, with the parties having separated three years before the deceased’s death. The Will, made when the couple was living together, left the deceased’s estate to “my de facto wife Kathrine”.

The Court placed considerable importance on the words “my de facto wife Kathrine”, and decided that the deceased didn’t merely intend to benefit Kathrine; he intended to benefit Kathrine because she was his de facto wife. Accordingly, the Court concluded that the deceased would not have wanted Kathrine to benefit from his estate as she was no longer his de facto wife at the time of his death.

Would different words have made a difference?

As the decision in this case depended on the use of the words “my de facto wife Kathrine”, the outcome may have been different if the Will had merely referred to Kathrine by name, without also describing her as “my de facto wife”. That is, despite separating from the deceased years before he died and regardless of whether she had also received a property settlement, Kathrine could have received her former partner’s estate.

Some words of caution

The case of Blyth v Wilken is only one decision of a single Master (not a Judge). The decision is not binding and a Court could come to a different decision on similar facts. Hence, a reference in your Will to “my de facto partner such and such” will not necessarily guarantee that that person will not benefit from your estate in the event that your relationship ends before your death.

In NSW, Victoria, South Australia, Western Australia and the Northern Territory separating from your de facto partner will not change your Will and any gift in your Will to your ex-de facto could still be valid, despite the fact that you have separated and divided up your assets. In the ACT, Tasmania and Queensland, termination of a registered de facto relationship will revoke any gift in your Will to your ex-de facto partner. However, this only applies to registered relationships and registered terminations of them; and in the ACT it only applies to registered same sex relationships.

Depending on the State or Territory in which you live, you may also need to be wary of ex-partners making a claim for financial provision from your estate, even if you have changed your Will and had a property settlement. In general terms, in NSW, Tasmania, Western Australia and the Northern Territory your former de facto could make a claim on your estate if he or she was being maintained by you at the time of your death. Similar provisions apply in Queensland if your ex-partner is also the parent of your minor child. In Victoria, the entitlement to make such a claim is dependent on you and your ex-de facto not having finalised a property settlement by the time of your death.

The ACT and South Australia represent the two extremes. In the ACT, any ex-de facto from a relationship exceeding two years could be entitled to extra provision from your estate, regardless of whether or not he or she was dependant on you at the time of your death. However, the Court will take into account the terms of any post-separation property settlement. In South Australia, on the other hand, ex-de facto partners are not entitled to make such a claim at all.

Conclusion

Regardless of where in Australia you live, if you are going through a relationship breakdown, always speak with your family lawyer about what might happen if you or your former partner dies, even after you have completed your property settlement. It is important to review, and if necessary change, the terms of your Will as soon as possible after the ending of any relationship. In addition, in NSW your family lawyer could assist you to apply to the Supreme Court for approval of an agreement between you and your former partner that neither of you will make a claim on the other’s estate after the other’s death.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.