What's mine isn't always yours

Things can get tricky when there is a Will dispute involving unmarried, LGBTI or separated partners. When drafting your Will, you can choose to leave your assets to whoever you choose.  However, the law recognises that there are certain people who you should provide for.

Unmarried and same-sex relationships

The existence of a relationship, of itself, does not guarantee the surviving partner the right to share in an estate where there is no Will, nor does it necessarily mean that the partner can challenge the Will. The rights that exist in these scenarios depend entirely on the circumstances.

Where there is no Will

To establish a right to an estate where there is no Will you will generally need to show that you were either in a registered domestic relationship or prove that you were living with the deceased on a genuine domestic basis and had being doing 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.

Where there is a Will

If an unmarried or same-sex partner is not included in their partner’s Will, they will need to establish their right to challenge the Will before making a claim.

If you are not in a registered relationship, then you will need to prove that you were in a domestic relationship with the deceased at the time of death. The same considerations referred to earlier apply.

Separation and divorce

If you and your partner were temporarily separated at the time of their death (for reasons that might include work, travel or illness), then the court will be required to examine the particular circumstances of the case to determine whether or not the relationship still existed.

Divorce can be treated differently, depending on whether you have been divorced for years or are still sorting out how to divide your assets. If you are separated but not legally divorced, then the court will treat you as though you were the current partner of the deceased.

If you and your former partner have been separated or divorced for years, have moved on with your lives, or have remarried and are financially independent, it will be extremely difficult to contest a Will. Things can become even more complex if there has been a previous court decision to give one partner ongoing maintenance payments.

If you’re unsure of where you stand or what your rights are, it’s a good idea to get legal advice. Ultimately it is a question of fact. An expert legal team can help you navigate the legal process so you can be sure you understand your rights and entitlements.

Andrew Meiliunas is a Lawyer in Maurice Blackburn's Melbourne office.

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