Everyone should have a valid and current Will, but what impact does a relationship change have on your Will? For example, if you have drafted a valid Will, whilst you were single and you are now in relationship, but the Will makes no mention of your partner, are they automatically entitled to a portion of your estate? If your partner meets the legal definition of a spouse and you have not provided for them in your Will, your spouse will be entitled to make a claim against your estate because you have not adequately provided for them.
So, what is a spouse? In Queensland, your spouse can be a husband, a wife, or a de facto partner. The concept of husband and wife needs no further explanation, but what is a de facto partner? A de facto is one of two persons who are living together as a couple on a genuine domestic basis for a continuous period of at least two (2) years at the time of the deceased’s death.
How do you know if you are living together on a genuine domestic basis? If you live in the same house, and have done so for in excess of 2 years, enjoy a sexual relationship, are financially dependent on each other, own property jointly, raise children together, care and support each other, perform household tasks, and are viewed by friends and family as being in a relationship, then you are living together on a genuine domestic basis.
The only crucial characteristic is that you must been in a spousal relationship for at least two (2) years. All other characteristics are established as guiding criteria. For example, you may not raise children together, but meet all other guiding criteria. If that is the case, you are a spouse. Each case is judged on its own circumstances, and you can apply your own circumstances to the characteristics described above to help you decide whether or not you are a spouse.
If you fail to meet the definition of a spouse, including recently separated spouses, then you will be ineligible to make a claim for inadequate provision. All circumstances of the relationship must be considered, and you should still seek our advice.
If you have provided for your spouse in your Will and then separate, is your spouse still entitled to a portion of your estate, if you do not change your Will? The answer is yes. For married couples, a divorce revokes the clauses of a Will which relate to your ex husband/wife, but you have to be separated for at least 12 months before you can apply for a divorce, and anything can happen during that period, so it is better to draft a new Will while you are waiting for the divorce.
If you were never married, but provided for your spouse in your Will, and do not change your Will to reflect the breakdown of your relationship, then your estranged spouse is entitled to what has been written in your Will, whether you still want them to receive those gifts or not.
As you can see, relationships have a significant impact on your Will, and you should always seek legal advice when commencing a relationship or separating from your spouse.
Contact our team of Gold Coast will lawyers at MCG Legal for more information.