The Family Law Act governs the entitlements of a surviving spouse in Australia, the terms of the deceased person’s will, and the rules of intestacy if there is no will.
A spouse can be entitled to a significant portion or even the entire estate, depending on the presence of children and other relatives.
Superannuation and life insurance may also form part of what a spouse is entitled to inherit. The specifics can vary based on individual circumstances and state laws.
Spouse Entitlement After Death of the Partner
There are several different entitlements that a surviving spouse may be entitled to, depending on the specific circumstances.
Entitlements under the law of intestacy
If a person dies without a will, their estate will be distributed according to intestacy rules. Following the individual’s death without a will, the court granted a letter of administration to facilitate the distribution of their estate among the rightful heirs. These rules vary from state to territory, but generally, a surviving spouse will inherit most of the estate, with the children inheriting the rest. If there are no children, the spouse may inherit the entire estate.
Entitlements under a will
If a person dies with a will, their estate will be distributed according to the terms of the will. A will allows people to specify who they want to inherit their estate and in what proportions. A spouse can be left anything from the entire estate to nothing.
Spousal provision claims
Even if a person dies with a will, their spouse may be able to make a spousal provision claim against the estate. A spousal provision claim is a claim by a surviving spouse for a greater share of the deceased’s estate than they were left under the will. Spousal provision claims are typically successful if the surviving spouse is financially dependent on the deceased and is now left without adequate provision.
Entitlements to superannuation death benefits
A surviving spouse may also be entitled to a superannuation death benefit from their deceased spouse’s superannuation fund. The death benefit amount will depend on several factors, including the size of the superannuation fund and the deceased’s membership details.
Entitlements to Centrelink payments
A surviving spouse may also be eligible for many Centrelink payments, including a widow’s or widower’s pension and a family tax benefit. The amount of these payments will depend on many factors, including the surviving spouse’s age, income, and other circumstances.
Other entitlements
In addition to the entitlements mentioned above, a surviving spouse may also be entitled to some other benefits, such as:
- The right to live in the family home for a period of time after the deceased’s death
- The right to receive a lump sum payment from the deceased’s life insurance policy
- The right to inherit the deceased’s personal belongings
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What Does My Spouse Automatically Inherit If I Die Without A Will?
If you die without a will, also known as dying intestate, your assets will be distributed according to the intestacy laws of the state or territory where you reside.
These laws vary from jurisdiction to jurisdiction, but your spouse will generally inherit most of your estate.
Here is a table that summarizes the general intestacy rules in Australia:
| Relationship | Share of estate |
| Spouse, no children | Entire estate |
| Spouse, one child | Two-thirds of the estate |
| Spouse, two or more children | One-third of the estate |
| Children, no spouse | Entire estate |
| Parents, no spouse or children | Entire estate |
| Siblings, no spouse, children, or parents | Entire estate |
Can I Contest My Spouse’s Will?
Yes, you can contest your spouse’s will in Australia if you believe you have not been adequately provided for.
Under the family provisions law, spouses and children of the deceased can challenge the will because the distribution of the estate as outlined in the will is insufficient.
Courts will consider factors such as the needs of the challenging party, the relationship with the deceased, and the size of the estate when deciding whether to alter the will’s provisions.
You should speak to our experienced will lawyer for specific advice about your entitlements and rights to contest the will.
My Partner Has Died; Can I Stay in the House?
Whether you can stay in the house after your partner’s death depends on how the property was owned, your partner’s will, and possibly family law provisions.
If you own the property as a joint tenant, it automatically transfers to you. If you were tenants in common, you retain your share, and your partner’s share is distributed according to their will or intestacy rules.
If your partner solely owned the property, their will or intestacy rules determine inheritance. Your partner’s will may grant you a life interest, allowing you to stay.
In some cases, even without inheritance, you might apply for a right to occupy under family law, especially if you have dependent children or financial dependence.
What Happens If Husband Dies And House is Only in His Name Australia?
When a husband dies in Australia, and the family home is solely in his name, the outcome hinges on whether or not there’s a valid Will in place.
If a Will exists, it will serve as the guiding document for property distribution, ensuring the deceased’s wishes are respected.
In the absence of a Will, intestacy laws take effect, and in most cases, the surviving spouse would likely inherit either all or a significant portion of the house along with other assets.
However, the exact distribution under intestacy laws depends on factors such as whether the deceased had any children or other close relatives who might have a claim on the estate.
Legal Defense of Spousal Rights in Intestate Case
Our client, a widow married for 15 years, faced claims from her late husband’s siblings contesting her entitlement to his estate, as he had died intestate.
At Walker Pender, we asserted her rights under the rules of intestacy, which in many Australian jurisdictions would entitle a spouse to the entire estate if there are no children.
We meticulously presented evidence of the longstanding marriage and the absence of direct descendants, arguing for the client’s priority claim.
Our advocacy highlighted statutory entitlements and precedents, leading to a favorable court decision that upheld our client’s rights, allowing her to inherit her late husband’s estate rightfully.
Curious About Spouse Entitlement After Death of a Partner?
Have you recently lost a spouse and are uncertain about your entitlements? Walker Pender understands the intricacies of estate laws and is here to guide you through this difficult time.
Protecting your future starts now. Contact us to ensure your rights are recognized, and the legacy of your loved one is honored according to the fullest extent of the law. Let us help you find clarity and peace of mind.
