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Can My De Facto Claim My Inheritance in Australia?

can my de facto claim my inheritance | Justice Family Lawyers

When it comes to inheritance and de facto relationships in Australia, it’s important to understand your rights and obligations.

The question of whether your de facto partner can claim your inheritance is not always straightforward, as it depends on several factors and the specific circumstances of your relationship.

In this article, we’ll explore the legal landscape surrounding inheritances and de facto partnerships, and provide clarity on how the law treats these matters.

Understanding De Facto Relationships and Inheritance Rights

In Australia, de facto relationships are recognised under the Family Law Act 1975, granting partners similar rights and protections to those of married couples.

When it comes to inheritance, there are two main scenarios to consider:

  1. Inheritance as part of the division of assets during a de facto relationship breakdown
  2. Inheritance as part of a deceased partner’s estate

1. Inheritance and the Division of Assets

If a de facto relationship ends, the court may consider inheritances received by either partner during the relationship as part of the asset pool to be divided. However, this is not automatic, and several factors come into play:

  • The length of the relationship
  • The nature and extent of the contributions made by each partner
  • The individual circumstances of each partner, including their future needs

The court will assess whether the inheritance should be treated as a joint asset or as a separate asset belonging to the individual partner. Factors that may influence this decision include:

  • Whether the inheritance was kept separate or mingled with joint assets
  • Whether the inheritance was used for the benefit of both partners or the family
  • Any agreements or intentions expressed by the partners regarding the treatment of the inheritance

If a person in a de facto relationship dies without a will (intestate), their partner inherits according to state-specific formulas, often mirroring those for married couples. 

Also read: What is a De Facto Separation Agreement?

Can I protect my inheritance from property division?

If you are concerned about protecting your inheritance in the context of a de facto relationship, there are several steps you can take:

  1. Keep your inheritance separate: Avoid commingling your inherited assets with joint assets, and maintain clear records of the inheritance.
  2. Records and Documentation: Maintain clear and detailed records showing the separation of the inheritance from joint assets. This includes bank statements, purchase receipts, and other documents that track the use of the inheritance.
  3. Consider a Binding Financial Agreement: A BFA is a legal contract that outlines how assets, including inheritances, will be divided in the event of a relationship breakdown. It can specify that an inheritance should remain the separate property of the individual partner.
  4. Express your intentions clearly: Communicate your wishes regarding your inheritance with your partner, and consider documenting these intentions in writing.
  5. Seek legal advice: Consult with a family law professional to understand your rights and options, and to ensure you are taking the necessary steps to protect your inheritance.

By taking these precautions, you can strengthen your position that the inheritance was intended to remain separate from the communal assets of your de facto relationship, which can be crucial during any legal disputes or separation proceedings.

2. Inheritance and the Deceased Partner’s Estate

If a person in a de facto relationship passes away, their partner’s ability to claim the inheritance depends on whether the deceased left a valid will.

If there is a valid will:

  • The distribution of the estate, including any inheritances, will be carried out according to the terms of the will.
  • However, if the surviving de facto partner believes they have not been adequately provided for in the will, they can make a claim against the estate under the relevant state or territory legislation.

If there is no valid will (intestate):

  • The distribution of the estate will be determined by the intestacy laws of the relevant state or territory.
  • In most cases, the surviving de facto partner will be entitled to a significant portion of the estate, if not all of it, depending on whether the deceased had children.

Also read: De Facto Breakup Entitlements Australia

Factors Considered by the Court

When assessing a de facto partner’s claim to an inheritance, either in the context of a relationship breakdown or a deceased estate, the court will consider several factors:

  1. The duration of the de facto relationship: A de facto relationship lasting for several years suggests a more established partnership with a greater degree of shared life and intertwined finances. This strengthens your partner’s potential claim on your estate.
  2. The nature of the household and the degree of mutual commitment: Whether the couple lived together in a genuine domestic setting and there is evidence of a shared life and commitment to each other.
  3. Financial interdependence: If there was shared income, joint ownership of assets, or mutual financial support.
  4. Contributions: The contributions made by each partner, both financial and non-financial
  5. The care and support of any children involved: Whether the couple had children together or if the de facto partner played a role in raising any children from a previous relationship.
  6. Public perception: Whether the couple presented themselves as having a committed relationship with the outside world.

No single factor is decisive, and the court weighs all the evidence to determine if a genuine de facto relationship existed that warrants an inheritance claim. 

Also read: Interdependent Partner vs De Facto

Protect Your Inheritance with Justice Family Lawyers

Dealing with inheritances in the context of a de facto relationship can be complex and emotionally challenging.

At Justice Family Lawyers, our experienced team understands the intricacies of family law and is dedicated to helping you protect your assets and secure your financial future.

If you are concerned about how your inheritance may be affected by your de facto relationship, we are here to help. Our knowledgeable family lawyers will provide you with tailored advice, guide you through your options, and work tirelessly to achieve the best possible outcome for your unique situation.

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