Does My Spouse Automatically Inherit Everything When I Die?

Many people who are preparing their will or thinking about what will happen after they die often approach a wills and estate lawyer, with the question ‘Does my spouse automatically inherit everything when I die?’.

The answer to this question is not always straightforward.

It depends on several factors, like whether you have a valid will that names your spouse as the beneficiary, who else may have claims to your estate and in what state you live.

More importantly, if you do want your spouse to inherit everything when you die, there are concrete steps you can take to guarantee your wishes will be carried out when you pass away.

In the current climate, more than ever before, you must create a will following all the relevant legal requirements to ensure your loved ones are looked after when you pass away.

What Happens if You Die Without a Will in NSW

If you die without a valid will in NSW, you die as an intestate.

So then, does a spouse automatically inherit everything?

When this happens, your assets will be distributed according to the rules of intestacy as defined in the Succession Act 2006. The rules in the succession act are very specific. They are subject to any person who may seek a family provision from your estate.

Whether you die with or without a valid will, it is important to note that the first people to be paid from your estate will be creditors or any other people you owe money too.

This includes:

• Funeral expenses
• Taxes
• Debts to any financial institutions or other lenders
• Any outstanding administrative or legal expenses

Dying Without a Will in NSW General Order of Inheritance

1. Spouse
2. Children and grandchildren
3. Parents
4. Siblings
5. Grandparents
6. Aunts and uncles
7. Cousins
8. The state

Dying Without a Will Spouse Entitlement

The following rules of the inheritance rights of spouses are used to determine whether or not your surviving spouse is entitled to everything when you die:

• If you are in a marriage or de-facto relationship at the time of your death, your partner will have priority over other family members for the majority share of your assets
• If you leave behind a spouse and you have no children from either your current or previous relationship, your spouse is entitled to the entirety of your estate (after any debts are settled)
• If you leave a spouse with whom you have children, the spouse is again entitled to the whole estate
• If you have children with somebody other than your current spouse, your current spouse will be entitled to your personal effects, a statutory legacy which is calculated based on the consumer price index, and half of whatever is remaining. Your children will be entitled to the other half.
• In the event you die without a spouse, each of your children will be entitled to an equal share of your estate.

It is important to note that these principles only apply if you die without a valid will.

Otherwise, you can create a will that stipulates precisely how you would like your assets divided after your death. In doing so, you must follow all the necessary steps to ensure your will is legal and valid.  For a will to be valid in Australia upon someone’s death, the deceased must be deemed to have had testamentary capacity at the time of making a will in Australia.