Spousal Share and Intestacy

The distribution of an intestate estate is governed by legislation therefore it is treated differently depending upon the jurisdiction where the intestate lived. A useful illustration of the differences is how the spouse of the intestate is treated in the different states and territories in Australia

Who is a Spouse?

A Spouse is defined in a similar manner across Australia as someone who is married to or in a civil union with the intestate or is an eligible partner (often referred to as a de facto partner) who has lived for 2 years continuously with the intestate.

If a Spouse survives the intestate with no children, or grand children (“issue”), or with only issue of their own they are entitled to take the whole of the intestate estate, however in some jurisdictions the spouse is entitled to the whole of the estate only if there is no surviving issue, parents, siblings, or issue of siblings of the intestate.

Multiple Spouses

If the intestate is survived by an ex spouse and a current de facto partner then depending upon the jurisdiction the division of the estate depends upon the length of the relationship between the eligible partner and the intestate. In some cases if the eligible partner has been living with the intestate for the minimum of two years and less than 5 years the estate is shared equally, however if the period has been greater than 5 years the eligible partner takes all of the estate.

Statutory Legacy

In certain circumstances each jurisdiction prescribes a statutory legacy. Depending upon the jurisdiction the amount of the estate that goes to the spouse ranges from as little as $50,000 to a maximum of $500,000. The Spouse is entitled to the prescribed amount if the intestate leaves an estate equal or greater than that amount with the balance above this amount being shared depending upon a legislated formula.

Calculating the spouses share is indicative of the complexities of the Administration of an intestate estate. The benefit of leaving a Will is that you can leave your estate in the manner that you wish and not via a legislated formula that could mean people you have little or nothing to do with could be entitled to benefit from your estate.

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