Understanding Intestacy in NSW
When a person dies intestate in New South Wales—that is, without a valid will—the distribution of their estate is governed by the rules set out in the Succession Act 2006 (NSW). In most cases, the estate will pass to the closest surviving relatives in a legislated order of priority. However, complications can arise when the deceased was legally married at the time of death but also had a long-term de facto relationship with another person. These situations of intestacy of married and de facto persons give rise to complex legal questions concerning who qualifies as a spouse and how the estate should be divided between competing claimants.
Legal Definition of Spouse and De Facto Partner
A “spouse” is defined to include not only a person who was legally married to the deceased at the time of death but also a person who was in a de facto relationship with the deceased that satisfies certain statutory conditions. Section 104 of the Act recognises de facto relationships that were in existence at the time of death, provided the couple had lived together on a genuine domestic basis for at least two years or had a child together. Importantly, the Act allows for the possibility that both a legal spouse and a de facto partner can simultaneously qualify as spouses. The existence of an ongoing legal marriage does not prevent a de facto relationship from being recognised, even if the married couple were separated but not divorced at the time of death.
Identifying a De Facto Relationship
Section 21C of the Interpretation Act 1987 (NSW) provides further guidance on how de facto relationships are identified. Courts assess a range of factors including the duration of the relationship, nature and extent of common residence, whether there was a sexual relationship, financial dependence or interdependence, ownership and use of property, degree of mutual commitment to a shared life, and public aspects of the relationship. No single factor is determinative; rather, the court must look at all the circumstances and determine whether the parties lived together as a couple on a genuine domestic basis.
Intestacy When There Is More Than One Spouse
Sections 122 to 126 of the Succession Act 2006 regulate how an intestate estate is to be distributed where the deceased was survived by more than one spouse. These provisions are central to resolving disputes involving both a legal spouse and a de facto partner.
Section 122 provides that if there is more than one spouse but no children (issue), the spouses are entitled to the whole of the intestate estate. Section 123 applies where the deceased leaves more than one spouse and issue, but all the issue are also issue of one or more of the spouses. In such cases, the spouses collectively are entitled to the whole of the estate.
Section 124 applies where any issue of the deceased are not issue of a surviving spouse. The spouses are then entitled to: (a) the intestate’s personal effects, (b) the statutory legacy, and (c) one-half of the remainder of the estate. The other half of the remainder passes to the deceased’s children from previous relationships.
Sections 125 and 126 address how the collective share of the spouses is divided between them. Section 125 enables spouses to reach a written distribution agreement or to default to equal shares if no agreement or court order is made within a specified period. Section 126 empowers the Court to make a distribution order that it considers just and equitable. There is no presumption of equality, and the Court may award all or part of the estate to one spouse, having regard to the particular facts and circumstances of the case.
Distribution of an Intestate Estate Between Two Spouses
When more than one person qualifies as a spouse under the intestacy rules, section 126 of the Succession Act applies. This provision allows for the spouses to agree on how the estate should be divided or, failing agreement, for the court to make a distribution order it considers just and equitable. This process does not presume an equal division. The court will take into account a range of factors similar to those used in family provision applications, including the length and nature of each relationship, financial and non-financial contributions made by each spouse, the size of the estate, and the current and future financial needs of each party.
Bailey v Palombo [2020] NSWSC 1209
The leading case involving disputes about intestate persons who are married and in a de facto relationship in NSW is Bailey v Palombo [2020] NSWSC 1209. In that matter, the deceased, Brian Palombo, died intestate while still legally married to his wife Gail, although they had been separated for approximately eight years. At the same time, he had been living with Ms Jacqueline Bailey in what the court ultimately found to be a de facto relationship. Ms Bailey sought a share of the estate on the basis that she qualified as a spouse under section 104 of the Act.
The Supreme Court, applying section 21C of the Interpretation Act, considered evidence of cohabitation, joint travel, mutual support, and financial intermingling. The court concluded that Ms Bailey was indeed the deceased’s de facto partner at the time of death and had been living with him on a genuine domestic basis for more than two years. Accordingly, both Gail, the estranged legal wife, and Ms Bailey, the de facto partner, were recognised as spouses for the purposes of intestacy.
Because no agreement was reached between the two spouses on how to divide the estate, the court was required to make an order under section 126 of the Act. The court noted that section 126 gives it wide discretion and that the distribution should reflect what is fit and equitable in all the circumstances. Ultimately, the court awarded Ms Bailey the property she had shared with the deceased and additional funds for her financial support, amounting to approximately $500,000. The legal wife received the remainder of the estate, which was significantly larger. The court’s decision was guided by considerations of fairness, contributions made by each spouse, and their respective financial positions.
Sadiq v NSW Trustee & Guardian [2016] NSWCA 62
Another important authority is Sadiq v NSW Trustee & Guardian [2016] NSWCA 62. In that case, the claimant asserted that he was the deceased’s de facto partner and therefore entitled to her intestate estate. The evidence revealed, however, that the deceased had lived alone and that there was no sufficient evidence of a shared domestic life. Despite some formal documentation listing the claimant’s address as the same as the deceased, the court found this was not sufficient to establish a de facto relationship. The Court of Appeal affirmed the lower court’s ruling that the claimant was not a spouse under section 104 of the Act and therefore had no entitlement to the estate.
Family Provision Claims by De Facto Partners
These two cases illustrate the spectrum of possible outcomes in intestate married and de facto claims. Where the evidence supports the existence of a genuine domestic partnership, courts may recognise a de facto partner alongside a legal spouse, even if the legal marriage remains technically intact. Where the evidence is insufficient or the relationship lacks the characteristics of a de facto partnership, the claim will fail, and the estate will pass according to the default intestacy rules.
In addition to claims under intestacy, a person who does not qualify as a spouse under section 104 may still bring a family provision claim under Chapter 3 of the Succession Act. A de facto partner who does not meet the two-year requirement or whose relationship is contested might still succeed in a provision claim if they can demonstrate financial dependence or a moral claim on the estate. The case of Huxtable v Hawkins [2018] NSWSC 174 is a pertinent example. The plaintiff had been in a three-year relationship with the deceased, who was legally married but separated from his wife at the time of death. The will left nothing to the plaintiff. The court accepted that the plaintiff was living in a de facto relationship with the deceased and awarded her a modest legacy of $75,000, recognising her contribution to the deceased’s life and her financial need.
Legal Costs and Evidentiary Challenges in Disputes
Family provision claims offer a flexible avenue for relief in intestate married and de facto situations, particularly where the deceased failed to update their will or left the estate in a way that does not reflect the realities of their personal relationships. However, these claims are not guaranteed to succeed. The court will weigh the applicant’s needs and contributions against those of other potential beneficiaries, the size of the estate, and the nature of the relationships involved.
Another practical consequence of intestate married and de facto disputes is the burden of legal costs. These matters often involve complex factual disputes, extensive evidence, and protracted litigation, particularly when the legal spouse and the de facto partner contest each other’s claims. In Huxtable v Hawkins, for example, the legal costs for both parties amounted to nearly $300,000, a significant sum in light of the relatively modest provision ultimately awarded.
Proving a De Facto Relationship in NSW
It is important to note that proving a de facto relationship is highly fact-specific. The courts will not lightly infer the existence of a de facto relationship based solely on friendship, occasional cohabitation, or shared travel. A high degree of personal interdependence, shared financial commitments, and mutual support over time are essential to establishing a genuine domestic basis for the relationship. On the other hand, legal marriage, while conferring spousal status by default, may be displaced or diluted in terms of estate entitlement where the marriage had effectively ceased in substance years before the deceased’s death.
Given the legal and evidentiary complexity of intestate married and de facto matters, early legal advice is crucial. Individuals involved in such situations should gather documentary evidence of their relationship with the deceased, including photos, correspondence, joint accounts, shared bills, and testimonies from friends or neighbours. Legal spouses should be prepared to address any period of estrangement and the financial and emotional contributions they made to the deceased’s life, even after separation.
Navigating the De Facto Landscape
Courts must balance statutory definitions, the factual realities of personal relationships, and principles of fairness when determining who is entitled to a share of a deceased person’s estate. Whether through the operation of the intestacy rules or via family provision claims, both legal spouses and de facto partners may assert their rights, but success will depend on the strength of their evidence and the unique circumstances of each case. As these cases show, careful planning, up-to-date estate documents, and timely legal advice are essential to avoiding costly and distressing disputes after death.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
