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Entitlements After My Husband/Wife Passes Away


It’s very difficult to cope with the death of your spouse. When your spouse dies, you have to face many emotional, psychological, and even financial challenges. If your spouse dies in intestacy, your financial problems can become worse. Intestacy refers to the condition when a person dies without having in force a valid will or other legally binding declaration. This may also apply to a part or parts of the will, making them an intestate estate. 

Almost half of Australians die without having a valid will in force. Intestacy can engender confusion among the family members of the deceased. However, you must know that as the spouse of the deceased, you are entitled to a large part of their estate. 

Rules of Intestacy in Australia

The Part IV of the Administration and Probate Act of 1958 defines the entitlements of the individual whose spouse dies in intestacy. You must ask your family lawyer to walk you through your legal entitlements. While the rules around intestacy vary from state to state, an intestate estate is normally divided up between the children and surviving married or de facto spouse. 

Each state or territory defines the ‘Next of Kin’ differently due to which your entitlement as a spouse may vary according to state rules. The law of intestate outlines who is entitled to the estate and what portion of the estate they inherit. The estate includes all property left over after the funeral costs, tax payments, administration expenses, and closing of both secured and unsecured debts. 

According to the Administration and Probate Act of 1958, a deceased person’s spouse or children are entitled to a portion of the estate. The state considers the next closest living relatives if there is no spouse or children. 

Who’s Considered a Spouse?

When a person dies without a will, their spouse gets the largest share of the estate. A spouse can include a wife, husband, civil partner, or de-facto partner. A de facto spouse is the one that lived with the deceased on a true domestic basis. 

The viability of a de facto relationship depends on several factors including the nature of the living arrangements and the length of the relationship. The couple need to have lived in a domestic or de facto relationship for a minimum of 2 years, or have a child together, or have a formally registered relationship. The same laws apply for homosexual couples. 

Who Deals with an Intestate Estate?

When a person dies intestate, there is no named executor to handle the estate. According to the rules of intestacy, the ‘next of the kin’ would need to apply for a letter of administration to become the executor of the estate. A letter of administration is a court order that appoints the ‘next of kin’ as the executor of the estate. 

What is the Order of Administration for the Intestate Estate? 

The heirs of the estate are administered on the basis of their relationship with the deceased. The spouse of the deceased is administered first followed by their children. If the deceased does not have a surviving spouse or children, the estate goes to parents and siblings 

If there is no surviving member of the nuclear family, the estate is received by the members of the extended family, such as grandparents, aunts, and uncles. If the deceased is not survived by any next of kin, the estate of the deceased is passed to the government or state as unclaimed property. 

How Do You Avoid Dying Intestate? 

When a person dies intestate, they leave behind a mess for family members. You can avoid dying intestate by creating a will that complies with the state rules. A valid will must include a named executor who will handle the administration of estate on your passing. You can hire a family lawyer Melbourne to create a will. 


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