What happens when you die without a Will and have multiple spouses?
If you pass away without a Will, you are said to have died “intestate”. When a person dies intestate, their estate is distributed in accordance with the “intestacy rules”. These are set out in Schedule 2 of the Succession Act (Qld) 1981.
Whilst the distribution of an intestate’s estate is somewhat straightforward where they have a spouse or a spouse and children, it becomes more complex when an intestate has passed away with more than one spouse and/or multiple children to different spouses.
How can you have more than one spouse?
Under the Succession Act, a “defacto” spouse is treated the same way as a spouse who was married to the intestate. That being the case, it is possible to have multiple spouses.
Where an intestate passed away on or before 1 May 1998, a defacto was deemed to be a spouse provided they had been living with the intestate for at least 5 continuous years, ending on the death of the intestate, or for at least 5 years in the 6 years prior to the intestate’s death, ending on the death of the intestate.
The definition of spouse was later amended and relaxed such that where an intestate passed away on or after 1 May 2003, a spouse included a defacto of at least 2 years (down from the previous 5 year relationship) and included defactos of the same sex.
The issue of multiple spouses then arises where the intestate was married, then separated and then entered into a new defacto relationship following their separation.
Distribution on Intestacy
Where an intestate passes away leaving a spouse and no children, the whole estate is inherited by the spouse.
Where an intestate passes away leaving a spouse and a child/children, the spouse will receive the household chattels and a “statutory legacy” of $150,000.00. The residuary (remainder) of the estate is then distributed equally between the spouse and the child/those children equally.
However, in situations where there are multiple spouses – each spouse does not get their own $150,000.00 or their own share in the residuary estate. Instead, the intestate’s estate is distributed as if there was only one spouse at the time of the intestate’s death and each spouse must share the distribution of only one spouse.
For example, if the intestate passed away with 2 different spouses and 3 children in total, their estate would be distributed as follows:
- Household chattels would be distributed between the 2 spouses
- The $150,000.00 statutory legacy would be distributed between the 2 spouses; and
- The residuary would be distributed in 4 equal shares, such that the spouses received a one-quarter (25%) share between them and then the children received a one-quarter share (25%) each.
How is the distribution to the spouses calculated between them?
Whilst the intestacy rules are very clear in relation to the distribution of the estate, the distribution of the share received by the spouses is somewhat more discretionary. This is dealt with in section 36A of the Succession Act.
In recognition of the fact that both spouses may have contributed to the estate of the intestate and have competing claims as to who should receive a larger share of the $150,000.00 and the one-quarter share (going by the example above), the legislation provides for a process for the spouses to go through first, before simply deciding to distribute the share of the intestates’ estate equally between them.
In the first instance, it is hoped that the spouses will come to an agreement between them – a “Distribution Agreement”.
Failing a Distribution Agreement being made between the spouses, either spouse or the personal representative of the estate may apply to the Court for a “Distribution Order”. This involves the Court making a decision based on an outcome that is just and equitable. A court may, in its discretion, award the whole share in the intestate’s estate to one spouse rather than the other.
Initially, the personal representative of the intestate’s estate must give a notice to both spouses requiring them to either enter into a Distribution Agreement or apply to the Court for a Distribution Order.
Should the spouses not do either of these things within 3 months of the giving of the notice, the personal representative has the right to distribute the spouses’ share of the intestate’s estate between them in equal shares.
Upon the expiry of the 3 months period since the notice was given, if there is no Distribution Agreement or Application made to the Court for distribution, the personal representative may proceed with distributing the share in the intestate’s estate between them in equal shares.
Whilst the obvious lesson is to always have a valid Will in place to prevent your estate being distributed in accordance with the intestacy rules rather than your wishes, it is also important to ensure that any defacto separations or marriage breakdowns are finalised by way of Consent Orders or by way of a Binding Financial Agreement. These documents give you financial severance from your previous relationship and protect against a former husband or spouse receiving a share in your estate should you not have a valid Will in place, as the “multiple spouses” issue is then removed.
If you need assistance with your estate planning or in finalising your separation, please contact our experienced Wills and Estates Solicitors and our experienced Family Lawyers on 3870 824 (Toowong) or 3264 7692 (Albany Creek).