Dying without a Will: It doesn’t always go to the spouse

Dying without a Will: It doesn’t always go to the spouse
Posted on 25 Aug 2021

 

Recent data suggests that more than half of all Australian adults do not have an up-to-date will.  

It is commonly thought that if a person dies without a will, the spouse receives everything.  However, this is not always the case.  If a person dies without a will, their estate will be distributed under the laws of intestacy.   Each state has its own intestacy laws.  The laws are complex and they do not allow a spouse or child to decide among themselves how the estate is to be distributed.  

In Queensland, the way in which an estate is distributed when a person dies without a will is outlined in Schedule 2 to the Succession Act 1981 (Qld).  A general summary of how the estate must be distributed follows:

 

  • If there is a surviving spouse and no children, the spouse will be entitled to the whole of the estate. A spouse includes a husband, wife, de facto partner or civil partner.
  • If there is a surviving spouse and children, the spouse is entitled to $150,000 of the estate and the household chattels (furniture, ordinary household items, consumables and domestic animals) and the balance of the residual estate (that is the remaining estate) is to be divided as follows:
  • if the deceased has one child, the spouse will receive half and the child will receive half; and
  • if the deceased has more than one child, the spouse will receive a third and the other two thirds will be divided equally between the children.
  • If there are surviving children and no surviving spouse,the whole of the estate will be divided equally between the children.
  • If there is no surviving spouse and no surviving children, the estate will pass to a surviving parent or both parents or, if no parents are alive, the estate will pass to the deceased’s siblings, then nieces and nephews, then grandparents and then aunts and uncles.  

 

These rules will vary if the deceased had more than one spouse or if a child of the deceased has died but is survived by children (that is the deceased’s grandchildren).  

 

When it can go wrong

One of the main problems with an estate being distributed under intestacy laws is that it may leave the surviving spouse or a child in a position where they are not provided for adequately.  

 

Some examples of this are: 

  • the family home was in the deceased’s name and the provision left for you under intestacy laws does not allow you to stay in the house;
  • your son, whom you were financially dependent upon, died without a will meaning everything passed under intestacy laws to his spouse, who is independently wealthy; or
  • your father has a new spouse who is financially independent and you have a young child who has a medical condition which requires ongoing treatments.

These are just a few of examples of how the distribution of an estate under intestacy laws may leave a family member or dependant without adequate provision.  

 

What you can do 

If you think that you have not been adequately provided for as a result of the distribution under intestacy laws, you may be able to ask the court to grant you further provision from the estate.  

To apply to the court for assistance, you must be either:

  • a spouse of the deceased;
  • a child of the deceased (including a step child or adopted child); or
  • a financial dependant of the deceased (being either a parent of the deceased, a parent of a surviving child under 18 years of the deceased or a person under 18 years that was financially dependent upon the deceased as the time of their death).  

More detail in relation to family provision claims and eligibility can be found in our article on Family Provision

If your loved one has passed away without a will and you have been left without adequate provision, contact our estate litigation lawyers to see if we can help.  

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