How does having multiple spouses affect intestacy?

Published 27 Feb 2018

Author: Richele Nelsen

The term 'spouse' is commonly used to describe someone who is married, and the law prevents individuals in Australia from being wed to more than one person simultaneously.

So how can someone have multiple spouses? Well, spouse has a broader definition under intestacy laws. The Succession Act 2006 states that a spouse is either:

  1. Someone who was married to the deceased immediately before their death; or
  2. A person involved in a domestic partnership with the deceased immediately before their death.

Domestic partnerships are de-facto relationships that have lasted continuously for at least two years or have involved the birth of a child. Therefore, situations can arise where a person is married but also has legally binding domestic partnerships with other people.

Why does this affect intestacy?

An estate is deemed intestate or partially intestate when an individual dies without leaving a will or fails to account for all their assets in their will.

The Act sets out guidelines for how these estates are handled. If the deceased only had one spouse and no children, the spouse is entitled to the entire estate. Similarly, an individual's children will receive all of their parent's assets if there are no surviving spouses.

However, the situation becomes complicated if the deceased had two or more spouses and can get even more complex when children are involved.

How does the Succession Act resolve these situations?

The Act outlines three scenarios that could arise when the deceased has multiple legally defined spouses, as well as how the estate is distributed in each situation.

Multiple spouses but no children

The estate can be distributed among the surviving spouses in a number of ways when the deceased only had spouses but no children:

  • Through a written agreement made between the spouses and submitted to the estate administrator; or
  • Via a Supreme Court order; or
  • Equally between the spouses.

Multiple spouses and children born from those spouses

If the deceased has children who are also the offspring of one or more of their surviving spouses, the estate is distributed under the same rules as when the deceased has no children.

In other words, the individual's assets are shared among the surviving spouses either by written agreement, a Supreme Court order or equally.

Multiple spouses and children from other relationships

Lastly, the deceased may leave behind multiple spouses, as well as children born from other relationships, such as past marriages or extra-marital affairs.

A number of steps are taken in these circumstances:

  1. The surviving spouses are given a $350,000 legacy from the estate, which they share between them;
  2. The spouses also receive the deceased's personal effects and half of any residual estate following the $350,000 payment; 
  3. Any children from other relationships split the remaining half of the residual estate equally.

As we can see, intestacy can create a number of complications with asset distribution. However, you can choose to pursue a family provision claim if you are unhappy with your share of an estate under intestacy laws.

To discuss your claim in more detail, please arrange a free consultation with Gerard Malouf & Partners Will Dispute Lawyers.

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