What is a de facto partner?

At law, a person is only in a de facto relationship if they are ‘living together on a genuine domestic basis’ in a ‘marriage like relationship’ with another person. In family law it is generally considered that a couple must have been in a relationship for at least two years, with some exceptions. Whether a de facto relationship exists or existed depends on the specific circumstances of each case.

What happens when someone is listed as a ‘De Facto’ on a Death Certificate?

Upon issuing a death certificate, officials may list a ‘de facto partner’ if they are advised that the deceased person was in a ‘marriage-like relationship’.

Unfortunately, we have dealt with numerous matters where more casual relationships, even those which would simply be considered ‘friends with benefits’ have resulted in a person being incorrectly listed on a death certificate as the deceased’s de facto partner, often to the complete surprise of family members.

This situation can result in numerous issues for family members, including a potentially unfair distribution of the deceased’s estate.

Why does it matter if a deceased person had a de facto partner?

1. Super Death Benefits

Super Death Benefits are often dealt with separately to a Will. The benefits are distributed by the trustee of a super fund to one or more of the deceased’s ‘dependants’, which would generally include a de facto partner. Superannuation law does not necessarily require a couple to have lived together for two years to be determined to have been in a de facto relationship. Therefore the de facto partner may receive a large portion of the super death benefits payment.

2. De facto partners can challenge a Will

A de facto partner can make an application under the Family Provision Act 1972 for greater provision from the deceased’s estate than they would otherwise receive. Again, it is not necessary for the claimant to have lived with the deceased for 2 years to be determined their de-facto widow.

3. What if there’s no Will?

In Western Australia, when a person dies without a Will their property is distributed in accordance with the intestacy provisions in the Administration Act 1903. If the deceased is found to have been in a de facto relationship for the 2 years immediately prior to their death, then their de facto partner is entitled to a significant portion of the estate under these provisions.

What if I don’t agree with the death certificate?

If someone has been incorrectly listed on a death certificate as a de facto partner, or not listed when they should have been, a Court or Trustee may be asked to determine the correct relationship status.

The team at FourLion Legal have acted for numerous clients in disputes about the existence of a de facto relationship after a person has passed away, even when the person was noted on the death certificate as the de facto partner.

If you need assistance with a family provision claim, estate or inheritance dispute, call us on 9335 6643 or email reception@fourlionlegal.com.au to arrange an initial consultation with one of our lawyers to discuss the merits of your case.

Disclaimer

This article is intended to provide general information in summary form. The contents do not constitute legal advice and should not be relied upon as such.