Most people treat this one as settled. You are married, so if you die first, everything goes to your partner. It is one of the reasons so many people never get around to writing a will.
The short answer is no. Not automatically. What your spouse receives comes down to three things: whether you left a valid will, whether you have children, and whether any of those children are from another relationship. That last one changes the result more than anything else, and it catches families out every year.
Below I work through what happens when there is no will, whether de facto partners are treated the same way, what never passes through the estate at all, and what changes when there is a will.
One thing to set straight first. Nowhere in Australia does a spouse automatically inherit everything, but the detail sits in state law, and the detailed rules on this page are New South Wales, under the Succession Act 2006 (NSW). Every state and territory writes its own intestacy rules and sets its own dollar figures. If the estate will be administered outside NSW, the shape of the answer is similar but the numbers are not, so check your own state.
What happens if you die without a will in NSW
Dying without a valid will is called dying intestate. Nobody chooses who gets what. The estate is distributed under the intestacy rules in Chapter 4 of the Succession Act.
Debts come out first. Funeral expenses, tax, money owed to creditors, and the costs of administering the estate are all paid before anyone inherits. Only what is left over gets distributed.
The order the law works down
After the debts, the law works down a fixed order:
- Your spouse
- Your children
- Your parents
- Your brothers and sisters
- Your grandparents
- Your aunts and uncles
- Your first cousins
If there is nobody in that list, the estate goes to the NSW Government (NSW Government, dying without a will).
Your spouse sits at the top of that order. But being first in line is not the same as taking everything, and this is where a lot of people get caught out.
What your spouse actually inherits without a will
There are three scenarios. Which one applies to you depends entirely on your children.
| Your situation at the date of death | What your spouse inherits | Section |
|---|---|---|
| A spouse, no children | The whole estate | s 111 |
| A spouse and children, and all of the children are your spouse’s children too | The whole estate | s 112 |
| A spouse and at least one child from another relationship | Personal effects, the statutory legacy, and half of what is left. The other half is shared among your children, who the Act calls your issue | s 113 |
So in the first two situations, the assumption holds. Your spouse does take the lot.
The third is the one that surprises people, and it is worth being precise about the money.
The statutory legacy, and why the figure keeps moving
The statutory legacy is a set amount your spouse takes off the top before the remainder is split. The base figure written into s 106 is $350,000, but it is adjusted for CPI every quarter, so the amount that actually applies is always well above the number printed in the Act. Two things follow from that. The figure that governs an estate is the one in force at the date of death, not the date the estate is wound up. And the current figure has to be looked up at the time rather than assumed. As at August 2026 it sits a little above $615,000.
Put that together for a blended family. Say the estate is worth $1.4 million once the debts and the personal effects are out of it, and there is a surviving wife and an adult son from a first marriage. She takes the personal effects, then the statutory legacy, then half of what is left. On a legacy of about $615,000, that leaves roughly $785,000 to be halved, so about $392,000 each.
The version I see most often is a long second marriage where one partner has an adult child from a much earlier relationship. Everyone assumes the survivor simply keeps the house and the savings. Under the intestacy rules the survivor does not. If most of the estate is the family home, that half share has to be funded from somewhere, and the home is often the only asset large enough to do it.
None of this is complicated to avoid. It is the default that applies when you do not make a valid will.
Do de facto partners inherit the same as a married spouse?
In NSW, yes, provided the relationship qualifies.
A de facto partner counts as a spouse for intestacy if the relationship was a domestic partnership immediately before death. That means a de facto relationship of at least two continuous years, or one that produced a child (ss 104 to 105). Once that test is met, the three scenarios above apply in exactly the same way. A qualifying de facto partner of eight years is in the same position as a wife of eight years.
Here is the practical catch. There is no marriage certificate to point at, so the relationship itself may have to be established before anything is distributed. Where there are children together, or a long joint financial history, that is usually straightforward. Where the relationship was shorter or more private, it can become the argument that holds up the whole estate.
What never passes through the estate at all
Some of the biggest assets people own are not governed by the will or the intestacy rules. They sit outside the estate entirely.
- Superannuation. Super is not automatically an estate asset. It is usually paid under a binding death benefit nomination, or, where there is no valid nomination, by the fund’s trustee (ATO, deceased estates).
- Life insurance. Where a beneficiary is nominated on the policy, the payout goes direct to that person.
- Property held as joint tenants. The deceased owner’s share passes to the surviving owner automatically by survivorship. It never enters the estate.
This is the one I see trip people up most often. A will gets drafted carefully, and the two largest assets, the super and the jointly owned home, were never governed by it in the first place.
It cuts both ways. Your spouse can inherit very little through the estate and still end up with most of what you owned, because the house and the super came to them outside it. Or the reverse: a nomination pointing somewhere else can strip the biggest asset out of their hands while the will looks generous on paper.
What happens if there is a will?
A will does not make it automatic either. Your spouse receives exactly what the will gives them. Nothing more.
That surprises people who assume a marriage overrides the document. It does not. If the will leaves your spouse a quarter of the estate, a quarter is what they get.
There is a backstop, though. An eligible person who has been left without adequate provision can bring a family provision claim, asking the court to change how the estate is shared. A spouse and a de facto partner are both eligible people (s 57).
The timing matters. A claim must generally be made within 12 months of the date of death (s 58). A court can extend that in the right circumstances, but the sensible approach is to get advice well inside the year rather than rely on an extension.
Who sorts out the estate when there is no will?
No will means no executor, so nobody has been appointed to act. Someone has to ask the Supreme Court of NSW for letters of administration first.
The court generally grants administration to the person or people with the greatest entitlement in the estate, usually the spouse or the children, or to NSW Trustee and Guardian. The grant is what lets the administrator go to the banks and other asset holders and require them to hand the assets over (Supreme Court of NSW, letters of administration).
A grant is not always necessary. Depending on the type and value of what is held in NSW, some asset holders may release smaller assets on a death certificate plus a signed declaration of entitlement, so it is worth asking the bank or institution directly if you are the surviving spouse and the sole next of kin.
With no will, nobody is already holding the authority to act, and that is where the delay comes from. The family waits on the court before anything can move. Where there is a will, the equivalent role belongs to the executor, and our guide to the executor’s role in NSW sets out what that person has to do.
What happens if my husband dies and the house is in his name?
This one comes up constantly in the days after a death, and the answer turns on how the title is held.
Held as joint tenants. His share passes to you automatically the moment he dies. Survivorship does the work. The house never becomes part of the estate, so the will and the intestacy rules do not touch it.
Held as tenants in common. His share does form part of the estate. It then follows the will, or, if there is no will, the intestacy rules above.
In his name alone. The whole property is an estate asset and follows the same path.
An example. The house is worth $1.2 million, it is in his name alone, and he dies without a will leaving you and a son from a first marriage. The house sits in the estate. You take the personal effects, the statutory legacy, and half of the remainder after debts. His son takes the other half. If there is not much cash anywhere else, the house is the only thing big enough to fund that share.
Checking how your title is held is quick, and it is one of the few things in this area you can settle today.
Not sure where this leaves you?
Whether you are writing a will or you have just lost your partner, the position is usually more settled than it feels right now. A short conversation will tell you which of the three scenarios applies to you, what your spouse would actually receive, and whether a will changes the answer.
Call 1300 614 732 for a free ten-minute discovery call, or speak to our wills and estates lawyers. You will finish the call knowing exactly where you stand.
Frequently Asked Questions
Does my spouse automatically inherit everything when I die?
No, not automatically. If you have no children, or all of your children are also your spouse’s children, your spouse takes the whole estate under the NSW intestacy rules. If you have a child from another relationship, your spouse takes the personal effects, the statutory legacy, and half of the remainder.
Does a spouse automatically inherit everything in Australia?
No. There is no rule anywhere in Australia that hands the whole estate to a surviving spouse automatically. Each state and territory writes its own intestacy rules and sets its own dollar figures, so what the spouse actually receives depends on where the estate is administered, whether there is a will, and whether there are children from another relationship. The figures on this page are the New South Wales ones.
Does a surviving spouse get everything if there is no will in NSW?
Sometimes. Where there is no will and no children from another relationship, the surviving spouse inherits the whole estate. Where there is a child from another relationship, the estate is split. Debts, funeral expenses and administration costs are paid before anyone inherits.
What does a spouse inherit if there are children from another relationship?
Where there is no will, the spouse takes the personal effects, a statutory legacy, and half of what is left. The other half is shared among the children. The statutory legacy has a base of $350,000 in the Succession Act and is adjusted for CPI each quarter, so the amount that applies is the one in force at the date of death. Where there is a valid will, the spouse instead receives whatever the will gives them.
Do de facto partners have the same inheritance rights as a married spouse in NSW?
Yes, where the relationship qualifies. A de facto relationship of at least two continuous years, or one that produced a child, counts as a domestic partnership for intestacy. The catch is practical: without a marriage certificate, the relationship may need to be established first.
Does superannuation form part of my estate?
Usually not. Superannuation is not automatically an estate asset. It is generally paid under a binding death benefit nomination, or by the fund’s trustee where no valid nomination exists. That means super can go to a different person from the one your will names.
