When a de facto relationship ends, many people assume their former partner will no longer have any claim to their estate. However, separation does not always prevent an ex-de facto partner from inheriting under a Will.
Many people believe that dividing assets after separation completely ends their financial connection. However, family law property settlements and estate planning deal with different issues. A separation agreement or division of assets does not automatically change the terms of a Will.
An outdated Will can therefore create unexpected outcomes if one partner dies after the relationship ends.
Can an Ex De Facto Partner Inherit From a Will?
An ex de facto partner may still inherit under a Will depending on several factors, including:
- the wording used in the Will;
- the succession laws that apply in the relevant state or territory;
- whether the relationship had legally ended before death; and
- whether another person challenges the estate distribution.
Separation does not always remove a former partner’s entitlement under a Will. Unless a person updates their estate planning documents, an ex-de facto partner may still receive a gift left to them.
The rules for dividing assets after separation are separate from the laws that determine how a person’s estate passes after death.
Why Separation Does Not Automatically Change Your Will
A Will continues to operate according to its wording until the person changes or revokes it.
Separating from a de facto partner does not always cancel gifts or appointments made in favour of that person.
For example, a person may prepare a Will while living with their de facto partner and leave their entire estate to that partner. If the couple later separates but the Will remains unchanged, the former partner may still have a potential entitlement to inherit.
This can lead to disputes between a former partner and other family members who believe the deceased no longer intended to provide for their ex-partner.
Case Study: Blyth v Wilken
The case of Blyth v Wilken considered whether a former de facto partner could inherit under a Will created before the relationship ended.
The deceased prepared a Will while he was in a de facto relationship. The Will left most of his estate to “my de facto wife Kathrine”. However, the couple separated approximately three years before his death and he did not update his Will.
The Court considered whether the deceased intended to benefit Kathrine personally or whether he only intended to benefit her because she was his de facto wife when he prepared the Will.
The Court decided that the wording “my de facto wife Kathrine” linked the gift to the relationship. As the relationship had ended before the deceased’s death, the Court found that Kathrine should not receive the inheritance.
Instead, other family members received the relevant share of the estate.
Could Different Wording in the Will Have Changed the Outcome?
The outcome in Blyth v Wilken depended heavily on the wording used in the Will.
If the Will had referred to Kathrine only by name, without describing her as the deceased’s de facto wife, the result may have been different.
The Court may have found that the deceased intended to leave the gift to Kathrine personally, regardless of whether the relationship continued.
This case highlights why you should review your Will after any significant relationship change, including separation.
Does Separation Revoke a Will in Australia?
The effect of separating from a de facto partner depends on the laws in the state or territory where you live.
In New South Wales, including areas such as Byron Bay, Ballina, Lismore and Kyogle, separation from a de facto partner does not automatically revoke gifts made under a Will.
This means an ex-de facto partner may still inherit from your estate if you have not updated your Will.
Different rules apply in other parts of Australia:
- New South Wales, Victoria, South Australia, Western Australia and the Northern Territory: Separation generally does not automatically revoke gifts made under a Will.
- Queensland: Ending a de facto relationship can affect gifts and appointments made in favour of a former de facto partner, similar to the effect of divorce.
- ACT and Tasmania: Certain registered de facto relationships and registered terminations may affect gifts made under a Will.
Because succession laws differ between jurisdictions, you should obtain advice based on your circumstances and location.
What Should You Do After a De Facto Relationship Ends?
After separating from a de facto partner, reviewing your estate planning documents should be a priority.
You should check whether:
- your former partner remains named as a beneficiary under your Will;
- your former partner is appointed as your executor or trustee;
- your power of attorney or other estate planning documents still reflect your wishes;
- your assets are structured in a way that matches your current circumstances.
Updating your Will after separation can help reduce uncertainty and minimise the risk of disputes between former partners, family members and other beneficiaries.
Our estate planning lawyers can review your existing Will and help prepare updated documents that reflect your current wishes.
Can an Ex De Facto Partner Challenge an Estate?
Even if a former partner is not named as a beneficiary, they may still have legal options depending on their circumstances.
In some cases, an eligible person may make a family provision claim if they believe they have not received adequate provision from an estate.
A family provision claim allows a person to ask the Court to review whether the deceased made adequate financial provision for them.
The rules surrounding estate claims vary between states and territories. Obtaining legal advice early can help you understand your rights and the potential risks involved.
Why You Should Review Your Will After Separation
Separation is a significant life change and provides an important opportunity to review your estate planning arrangements.
If you do not update your Will, your assets may not pass to the people you intend to benefit. This can create disputes, delays and additional stress for your family.
Reviewing your Will allows you to consider:
- who you want to inherit your assets;
- who should manage your estate after your death;
- whether your beneficiary choices still reflect your wishes;
- whether your other estate planning documents need updating.
Taking action early can provide greater certainty and help protect the people you want to support in the future.
Conclusion
Separating from a de facto partner does not always prevent them from inheriting under your Will.
If you prepared your Will during the relationship and have not updated it since separating, your former partner may still have rights depending on the wording of the Will and the laws that apply in your location.
The best way to avoid uncertainty is to review your Will as soon as possible after a relationship ends. Updating your estate planning documents can help ensure your assets pass to the people you intend to benefit.
If you need assistance reviewing or updating your Will, our experienced wills and estates lawyers in Byron Bay, Ballina, Lismore and Kyogle can provide advice tailored to your circumstances.