Understanding De Facto Relationships and Their Impact on Your Estate Plan
In the context of estate planning, one critical question often arises: "Am I in a de facto relationship?" This query is essential because, under the Succession Act in Queensland, a de facto spouse is treated similarly to a legally married spouse. This means that a de facto partner has an unconditional right to contest your will if they feel they haven’t been adequately provided for. Understanding whether you are in a de facto relationship is crucial for effective succession planning.
What Defines a De Facto Relationship?
In Queensland, the definition of a de facto partner is detailed in Section 32DA of the Acts Interpretation Act 1954 (AIA). According to this legislation, a de facto partner is someone who lives with another person as a couple on a genuine domestic basis without being married or related by family. To determine if two individuals are in a de facto relationship, several factors are considered:
The nature and extent of their common residence
The length of their relationship
Whether a sexual relationship exists or existed
The degree of financial dependence or independence and any arrangements for financial support
Their ownership, use, and acquisition of property
The degree of mutual commitment to a shared life, including the care and support of each other
The care and support of children
The performance of household tasks
The reputation and public aspects of their relationship
No single factor is decisive; instead, all circumstances are evaluated as a whole.
Key Indicators of a De Facto Relationship
A primary indicator of a de facto relationship is cohabitation. If two people live together, it suggests a genuine domestic basis. Additionally, the length of time they have lived together is significant. For a relationship to be recognized as de facto for succession purposes, the couple must have lived together for at least two years before the deceased's death.
Case Studies Highlighting De Facto Relationships
Re Hammett [1]
In the Queensland Supreme Court case Re Hammett, Mr. Hammett passed away intestate (without a will), and Ms. Dawson claimed they were in a de facto relationship, entitling her to part of his estate and the right to administer it. Despite living apart for six years following a family tragedy, they maintained their relationship. The Court recognized Ms. Dawson as a de facto spouse, considering their long-term relationship and other relevant factors, ultimately entitling her to administer the estate and receive a portion of it.
In the Estate of HRA. Deceased [2]
Conversely, in the 2021 case In the Estate of HRA. Deceased, the deceased had lived with a friend for 17 years but moved to a retirement home 10 years before his death. The Court found insufficient evidence of a continuing romantic relationship at the time of death. Thus, they were not recognized as de facto partners, emphasizing the importance of an ongoing romantic relationship and cohabitation.
The Importance of Recognizing a De Facto Relationship
Properly documenting whether you are in a de facto relationship is vital for your estate lawyer to understand well in advance. If recognised as a de facto relationship, your partner has the same rights as a spouse, including the right to contest your will. Accurately recording your relationship status helps avoid future disputes and ensures your wishes are upheld.
Steps to Take
If you are uncertain about your relationship status or its implications for your estate plan, consulting with a nearby solicitor is essential. Legal professionals can help navigate these complexities and ensure your will accurately reflects your wishes, protecting your assets and ensuring peace of mind.
Ensure your estate plan is robust and dispute-free. Book a consultation with Vicca Law today to discuss your relationship status and its impact on your will. Visit www.viccalaw.com.au or email lidia@viccalaw.com.au to schedule your appointment. Let’s work together to safeguard your legacy and provide peace of mind for you and your family.