No two people who embark on a relationship together hope that it will fail. Both partners take steps to progress their relationship: moving in together, splitting bills, combining finances, and perhaps even writing wills together. At the time they are written, these wills reflect the trust you have in your partner and the desire to provide for them in the event of your death. Sadly, de facto relationships break down just as often as marriages. In the aftermath of a split, disentangling two lives is both complicated and stressful, and these factors can lead to oversight. What happens if you forget to change the contents of your will and then pass away?
What is a de facto relationship?
According to the Family Law Act of 1975, a de facto relationship involves two parties of the same or opposite gender living together on a genuine domestic basis. A de facto relationship will be deemed to have arisen after a period of living together for two years or if there is a child of the relationship. The Court may also deem a relationship as de facto earlier than two years if a party has made substantial contributions to the relationship and there would be serious injustice in the relationship is not recognized
For the purposes of the Succession Act 1981 (Qld) there is a further requirement that the two parties lived together as a couple on a genuine domestic basis for a continuous period of at least 2 years at the time when one of the parties passes away.
Can your ex-de facto partner inherit from you?
Consider the situation in which your de facto relationship ended, you passed away, your will was never changed and now your ex is seeking to inherit his or her share, much to the displeasure of your family and friends. What happens now? Well, after June 5, 2017, in Queensland de facto relationships are now treated in the same manner as marriages. This means that upon dissolution of the relationship, a de facto spouse’s appointment as executor of the will shall be automatically revoked, along with any gift left to them under the will.
Differences to ending a marriage
As mentioned above, de facto relationships are meant to be treated the same way as marriages. In the same way that divorce revokes appointments and benefits left to the ex-spouse in the will, so too will the dissolution of a de facto relationship.
However, what most people might not realize is that revocation of dispositions and appointments to an ex-spouse in a will after marriage only occurs when a divorce order of the Family Court has been issued. Many assume that it happens as soon as the married couple begins the year of separation required for a divorce in Australia, but this is not the case. Though merely ending a de facto relationship will revoke these will provisions, the end of cohabitation between married couples will not because a formal divorce is required.
What if I want them to inherit?
Some people are able to maintain healthy and happy relationships with their ex-partners. If you are one of these people, you may want to keep will provisions that appoint your former partner the executor of your estate or bestow gifts on them. To prevent automatic revocation, you must include a specific contrary intention within the will.
Keeping wills up-to-date
What if your ex de-facto is claiming that the relationship hasn’t ended when you pass away? While a divorce order in a marriage is conclusive evidence of the dissolution of the relationship, there is no such document for de facto relationships. In the event of a relationship breakdown it is important to update your will to reflect the change in your circumstances. Outdated wills can cause unwanted costs, delay and distress to the administration of your estate.
Unfortunately, many people spend so much time in bitter property settlements and acrimonious family law proceedings that they forget all about updating their wills. In fact, a shocking number of Australians do not have updated wills, with studies showing that around 45% are living without a valid will. Most legal professionals suggest that you revisit your will (and other estate planning documents) every three to five years, or after a significant life event (such as the breakdown of a relationship) to ensure it is up-to-date and reflects your truest intentions.
Wills are complicated formal documents that must conform to strict legal requirements. As such, it is not advisable to prepare one on your own. Because of their complicated nature and the pain surrounding such topics, many leave estate planning until it is too late. If you or a loved one have any questions regarding de facto relationships, the validity of will provisions, or revising a current will, seek legal advice as soon as possible.