If your partner recently died and you weren’t married, your legal right to inherit from them depends on you being declared their ‘domestic partner’ by a Court.

The law says that a ‘domestic partner’ of a deceased person is entitled to inherit the following:

  1. all of their partner’s household items, items of personal use or ornament and any motor vehicles, plus
  2. the first $100,000 of their assets; plus
  3. half of the remainder. The other half of the remainder goes to that person’s children, if any. If the deceased had no children, then the domestic partner receives the whole of the estate.

What happens to the deceased’s home?

One of the main issues that arises when a person in a non-marital relationship dies without a will relates to the deceased person’s home. If the deceased owned the home in their sole name or as a tenant in common, and had children, that house might need to be sold in order to satisfy the above distribution of assets. If the partner was living in the home at the time, then this can cause significant problems.

For example, the house might be worth $400,000. The first $100,000 would pass to the domestic partner. The domestic partner would also be entitled to half of the balance (i.e. half of $300,000). The other half would be shared equally between the deceased’s children. The domestic partner would therefore be entitled to $250,000 from the deceased’s estate.

In order for this to occur, this would require the house to be sold unless the domestic partner could afford to buy out the children’s share of the house.

What is a ‘domestic partner’?

It is important to note that a person is only a domestic partner of another if the Court says they are. The Court can only determine this upon application.

In order to apply to be declared as a domestic partner of someone you need to have been living in a close personal relationship with them and have either:

  • lived with them continuously for three years or for a period amounting to three of the last four years prior to their death, or at some earlier date, or
  • have a child together.

What is a ‘close personal relationship’?

Legislation also defines what a ‘close personal relationship’ is. It refers to the relationship between two adults, regardless of their gender and whether or not they are related by family, who live together as a couple on a genuine domestic basis.

It does not include married persons or relationships where one of the persons provides domestic support or personal care for a fee or reward.

How can I be declared a domestic partner?

An application will need to be made to the Court providing evidence of your relationship. A court fee must also be paid. Our lawyers can assist you with this, and can prepare and file the application on your behalf.

What assets can be inherited?

The only assets that can be inherited are those that form part of the deceased person’s estate. This includes assets that the deceased person owned in their sole name or as a tenant in common, and those that are paid directly to the estate (or legal personal representative), for example, superannuation benefits or life insurance in some instances.

Assets owned jointly by the deceased with another person do not form part of the deceased person’s estate. Instead, they automatically pass to the joint owner.

If your partner has died with or without a will, we can assist you. Call one of our wills and estate lawyers now on 8213 1000.