Dying with Multiple Partners: “Playing the Field” or Poor Estate Planning?

To die with multiple partners– what does that mean?  In a social context, the meaning is quite obvious.  The deceased person was “playing the field”, so to speak.  He or she was in an active relationship with at least two individuals at the date of their death.  In a legal context, the phrase “dying with multiple partners” has a more obscure meaning.

When people ask us “why do I need a Will?”, we often find the best way to respond is to highlight what happens if they die without a Will.  A person who dies without a Will is said to have died intestate.  In each Australian State and Territory, there is intestacy legislation which determines to whom assets are distributed on death.

The statutory framework is rigid and wholly dependent on the circumstances of the deceased person at death.  These “circumstances” are whether the deceased had a spouse or partner at death, and what is the composition of the deceased’s family (both immediate family members and more distant relatives).

The intestacy legislation varies across jurisdictions, but generally speaking, the order of entitlement is (1) Partner, (2) Children, (3) Parents, (4) Siblings, followed by Nieces and Nephews, Grandparents, Uncles and Aunts, and Cousins.  If there are no members of any of those classes, then the deceased person’s estate reverts to the Territory or State Government.[1]

In relation to the deceased’s family, the categories of eligible beneficiaries are relatively easy to establish.  But what is the definition of a “partner” for the purposes of intestacy?  In the Australian Capital Territory, a partner is any of the following: the deceased’s spouse (wife or husband), civil union partner, civil partner or “eligible partner”.

An eligible partner is someone who was in a domestic relationship with the deceased at their death and fulfils one of the following two criteria:

  1. He or she had been the domestic partner of the deceased for a continuous two year period immediately prior to the deceased’s death; or
  2. Is the other parent of the deceased’s child (provided the child was a minor when the deceased died).[2]

A person is a “spouse” as long as they remain married.  Separation, without actual divorce (decree nisi), will not change how the intestacy legislation is applied.  The (unfortunate) fact is that a deceased person is unlikely to want someone who they have separated from to benefit from their assets.  It is easy to see how the application of the framework can result in inheritances that are unjust.

Let’s look at an example.  Say Bridget and John were married in 1990.  They did not have children and separated in 1998.  Neither of them thought that the formal process of getting a divorce was worth the time and expense.  Bridget and John have not spoken since 1998.  Bridget was jaded by the relationship and never re-partnered.  Bridget dies in 2018 with an estate valued at $4,000,000.00.  Who gets it?  John.  John is entitled to the whole of Bridget’s estate.  It does not matter that they have not spoken in over twenty years.  They were legally still married when Bridget died, and John is therefore Bridget’s spouse for the purposes of the intestacy legislation.

Now let’s retain that example, but change one fact.  Say Bridget re-partnered with Luke in 2014.  They have been in a continuous (and exclusive) domestic relationship since that date.  In 2017, they got engaged.  Bridget was not “playing the field”, but the law says she died with multiple partners. She was survived by her husband, John, and her eligible partner, Luke.  What happens to Bridget’s assets in these circumstances?  John receives $2,000,000.00 and her fiancé, Luke, receives $2,000,000.00.[3]

Remember that mere separation without divorce has no impact on the intestacy legislation, despite the fact that the person’s testamentary intentions are likely to have changed.  What can you do to avoid these arbitrary and unintended results?  You should ensure that you obtain proper estate planning advice and have a Will that reflects your current circumstances and testamentary intentions.

If you require assistance in relation to your estate planning arrangements, please contact the Estates Team at BAL Lawyers.

 

[1] Administration and Probate Act 1929 (ACT) s 49 and Schedule 6.

[2] Administration and Probate Act 1929 (ACT) s 44.

[3] Administration and Probate Act 1929 (ACT) s 45A.