When planning for the future, many of us prefer to avoid thinking about what might happen after we die. 

However, planning for the inevitable is crucial, especially when it comes to ensuring your loved ones are taken care of and your wishes are carried out appropriately.

One common misconception is that your spouse automatically inherits everything if their partner dies without a Will.

Intestacy in Queensland

In Queensland, the Succession Act 1981 (Qld) governs what happens to your estate if you die intestate.

When a person dies without a Will (intestacy), their estate is distributed according to a statutory formula, which may not align with their wishes. It’s essential to understand this process to avoid any unintended consequences.

What are my spouse’s entitlement under intestacy?

If you die intestate in Queensland, your spouse does have significant inheritance rights under legislation.

However, the situation is more complex than a simple transfer of all assets. The distribution depends on whether you leave behind children (or other descendants) and the value of your estate.

Scenario 1: No children

If you pass away without children, your surviving spouse will inherit your entire estate.

This provision applies to both married couples and de facto partners, who must meet the legal criteria for being considered a de facto relationship.

Scenario 2: With children

If you have children, the estate is not automatically equally divided between your spouse and your children.

Here’s how it works under instancy in Queensland (when you do not leave a Will):

1. Spouse’s preferential share: your spouse is entitled to the first $150,000 of the estate, plus household chattels (personal belongings like furniture, appliances, etc.).
2. Remaining estate: The remainder of the estate is divided between your spouse and Children (depending on how many children you have left):  

What if I leave only one child?

If there is only one child, the spouse receives half of the remaining estate, and the child receives the other half.

What if I leave multiple children?

If there are multiple children, the spouse gets one-third of the remainder, and the children share the remaining two-thirds equally.

What if I leave stepchildren?

Under intestacy, stepchildren are omitted from receiving any portion of the residuary estate.

However, it is worth noting that in Queensland, stepchildren are eligible to make a family provision claim which will allow the Courts to assess whether provision should be made from the estate for the stepchildren who brought a claim.

What if there is no surviving spouse or children?

Under intestacy, if the deceased did not have a spouse or children, then the estate will be distributed to the following people (in the following order):

1. parents;
2. siblings;
3. nephews and nieces;
4. grandparents;
5. uncles and aunts;
6. first cousins; then
7. the Crown.

De facto partners

It’s important to note that de facto partners have similar rights to married spouses under Queensland law.

However, proving a de facto relationship can sometimes be challenging, and it may be necessary to demonstrate that you were living together on a genuine domestic basis.

Importance of having a Will

Under intestacy, legislation determines the distribution of your estate, which may not reflect your personal wishes or the specific needs of your family. Creating a Will allows you to:

1. Specify your beneficiaries: Clearly outline who should inherit your assets, whether they are family members, friends, or charitable organisations.
2. Appoint an executor: Choose a trusted individual to manage and distribute your estate. If there is no Will, there’s no executor to be appointed. Therefore you leave it to a matter of priority on who may take control of your estate when you die and make an application for a grant from the Court.
3. Set guardians for any minor children (if both parents were to pass away): Designate guardians to ensure your children are cared for according to your wishes. The guardians will play a parental role dealing with the day-to-day needs, care and welfare of your minor children whilst they are under 18.
4. Minimise family disputes: Reduce the likelihood of conflicts among surviving family members and the risks of claims against to your estate by providing clear instructions.

What steps should I take?

To ensure your estate is distributed according to your wishes, take the following steps:

1. Consult a lawyer: Seek legal advice to draft a Will that complies with Queensland law and addresses all aspects of your estate.
2. Regularly update your estate plan: Life changes such as marriage, separation, divorce, the birth of children, or acquiring significant asset should prompt you to review and update your Will.
3. Communicate with loved ones: Discuss your wishes with your family to help them understand your decisions and reduce potential misunderstandings.

While your spouse has substantial inheritance rights under Queensland law, dying without a Will can lead to outcomes that may not align with your wishes.

By taking the time to create a Will, you can ensure that your loved ones are cared for and that your estate is distributed according to your specific wishes. Planning ahead provides peace of mind and security for those you leave behind.

Please feel free to contact us if you have any questions or need assistance in getting your estate planning affairs in order.