Step-children can sometimes get the short end of the stick when a step-parent dies without having made a will (known as ‘dying intestate’). Knowing your rights means understanding when you are eligible for a share in the estate of the step-parent who died.

A ‘step-child’ means someone whose parent has married someone who is not their parent, but the child was never adopted by the step-parent. The step-child doesn’t have to have lived with the step-parent for this legal relationship to exist. If a marriage didn’t occur, then the step relationship does not legally exist.

     A step-child can – in some cases – contest the division of the estate
A claim can arise if the step-parent died while living in the state of Australia that the law applies, a claim is made within the specified period of time (usually between six and nine months), and a step-child can prove that reasonable financial provision was not made as a result of normal rules that applied to the death and estate division. You will need a lawyer.

     What about my step-parent’s superannuation?
A step-child isn’t automatically guaranteed a share of their step-parent’s superannuation fund unless financial reliance can be established, and the fund member (the step-parent) listed the step-child on the list of beneficiaries. A death nomination is not binding, but it will be taken into account. The trustee will need to determine other beneficiaries like other children, siblings, or parents. If a complaint cannot be resolved with the trustee, further steps can be taken to negotiate with the trustee. If no nominations were made, the estate receives the funds to be distributed as per the estate guidelines.

If a binding nomination was made, then the trustee is bound to distribute in accordance with the wishes of the step-parent, however seek legal advice if you believe the distribution was unfair. In the case of a self-managed superannuation fund, things can be more complex, so seek legal advice.

     Contributions to property and mortgages owned by the step-parent
If a step-child has contributed to property purchases or mortgages, including renovations, then they have an interest that can be claimed upon in court. This ‘equitable investment’. Sometimes a step-parent may have led you to believe that you would inherit their property after they died, when this wasn’t the case. In these situations, seek legal advice quickly so that your interests can be taken into account by the court.

     How to prove yourself in a family provision claim
If you are eligible, you must prove that you were not offered ‘reasonable financial provision’ from the step-parent who died without a will. Your provision is to live comfortably and decently according to the standard of living you have become accustomed to during the step-parent’s lifetime. A need of financial assistance is not enough, and a sense of unfairness is also not enough. A court will examine your situation and decide if you didn’t receive a share of the step-parent’s estate because they didn’t have a will, that this was unreasonable. They will be seeking fairness.

     Part of the family – eligibility to claim
If you were treated as part of the family of the step-parent, you may be eligible to claim – the role of parent towards you must be established. Kindness or affection are not enough. If you are a dependant, where the step-parent contributed to your life financially, you may also be eligible. A close relationship counts, so holidays, care, visits, and trust established. Living together at some time is often important.

If the estate has already been distributed, the money can be taken back to account for a step-child’s claim.