LGBTI rights in estate disputes

The laws surrounding the rights of LGBTI people, their partners, children and other family have changed dramatically over recent years, and it is a complex and evolving area of the law. The classification and definition of 'de facto' and 'domestic' relationships are governed by multiple laws in multiple jurisdictions.

Who is the next of kin?

In many disputed estate matters where there is no Will, the relevant issue is identifying who has the right to administer and receive the estate. Where there is a Will the issue is often who can challenge the Will. This is particularly relevant to the rights of a same-sex partner. While the requirements for the establishment of a de facto or domestic relationship differs between Acts of Parliament and between jurisdictions, the gender of the partners to a relationship is irrelevant.

A de facto or domestic relationship is a relationship that exists between two adults who are living together as a couple but who are not married to each other. This definition includes same-sex relationships. Therefore, when it comes to establishing an entitlement to an estate or a right to challenge a Will, anyone who can establish themselves as the partner of the deceased (irrespective of gender) can bring a claim.

Feeling ignored

Despite the existence of laws recognising LGBTI rights in a deceased estate, if a person in a same-sex relationship dies without leaving a Will, their partner’s rights may be overlooked by the deceased’s family.

In this situation, the partner will need to prove that a de facto or domestic relationship existed. This can be a sensitive situation, especially if the family of the deceased is not willing to acknowledge the relationship.

What you need to prove

To establish a right to an estate where there is no Will the surviving partner will generally need to show that they were either in a registered domestic relationship or prove that they were living with the deceased on a genuine domestic basis and had being so for a continuous period immediately before the death.  The length of time required to establish a right to the estate varies between states and so advice should be sought in your jurisdiction.  In some states it is two years, in others it is longer.

In determining whether a domestic relationship exists (where the relationship is not registered) the particular circumstances of the relationship are relevant.  The following are the particular matters that will be looked at:

  • The degree of mutual commitment to a shared life
  • The length of the relationship
  • The nature and extent of the common residence
  • The existence of a sexual relationship
  • The type of assets owned and how they are owned    
  • The degree of financial dependence    
  • The public perception of the relationship.

Proving some of these things can be a problem for LGBTI partners, who don’t always meet the definition of ‘domestic partner’. Some LGBTI couples genuinely believe they are in a committed, mutual relationship, even though they may live in separate houses or in slightly unconventional arrangements in the same house.

Where there is a Will that makes no provision for a LGBTI partner, the surviving partner’s right to challenge the Will also depends upon being able to establish the existence of a domestic relationship.

LGBTI relationships can also be more complicated when a partner has previously been in a heterosexual marriage and does not yet have their divorce (and property matters) finalised. This means that the former spouse may also be legally able to contest the Will or be able to claim part of the intestate estate, even though the deceased may not have wanted to leave them with anything. Most of the time, however, a same-sex partner who has been living with the deceased for an extended period of time will be in a good position to make a claim on the estate.

In the majority of cases, a same-sex partner who has been living with the deceased for an extended period of time will be in a good position to make a claim on the estate, however, given the complexity of these matters, you should seek advice so that you fully understand your rights.

LGBTI superannuation rights

Share this article on:

Alana Pearson

Maurice Blackburn Sydney

Alana Pearson is a Senior Associate and State Wills & Estate Leader in Maurice Blackburn’s Sydney office who works exclusively in Wills and Estates law across the New South Wales jurisdiction. She regularly sees clients in our Parramatta office and will travel to regional areas including Newcastle.

Alana has eight years of experien…

Read more

See all contributors