If your partner dies without a will, and you are not married, issues can arise due to current law pertaining to who gets what. This law applies equally to all couples of any gender or sexual orientation. An unmarried partner is a person who has cohabited with another person as a life partner, but anyone in a civil partnership or married is not in this category.
An unmarried partner is not usually the administrator of their partner’s estate and is not entitled to a share under the rules of intestacy – that is, dying without having made a legal will. In these cases, contesting these rules may be in order.
Contesting the outcome of intestacy rulings (no valid will at time of death)
Unmarried partners can contest the division of assets and seek a family provision claim. A claim can be made against the estate if certain requirements are met, for example the claim is made within the specified state time period, reasonable financial provision was not granted, and the person is eligible.
Family provision claims
A family provision claim can be made by an eligible claimant, which could be an unmarried partner or another person who was financially supported immediately by the person who died. You must have been living in the same household as the deceased, and lived ‘like husband and wife’ but weren’t formally married or in a civil partnership (this applies to couples of all kinds) for two years immediately prior to the death.
A commonsense approach is taken by the courts.
Partners who weren’t provided for appropriately in the will
If your partner did make a will, but your living arrangements are not properly cared for within this, you can apply for a family provision. You must prove that the person who died – your life partner in whatever capacity – failed to make proper provisions for you in their will.
Is the house safe from a family provision claim?
In the circumstance whereby the house has been paid for by two tenants – a couple – and one person dies, the share of the deceased person immediately passes to the other joint tenant. The property is then owned only by the surviving joint tenant. In this case, the house is safe, but not so if another person claims family provision in New South Wales and possibly other states.
If the house is only owned by one person in the couple, then that person dies without a will, the surviving person has no automatic claim on the house, particularly if unmarried.
You will need legal advice in these circumstances so contact Vanessa Ash for expert legal advice.
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