When a de facto relationship ends, updating your Will may not always be the first thing you think about. Many people assume that once they separate and divide their assets, their former partner will no longer have any claim to their estate.
However, separation does not always remove an ex de facto partner’s potential entitlement under a Will or succession law. If your Will still names your former partner as a beneficiary, complications may arise after your death.
This article explains whether an ex de facto partner can inherit, how separation affects a Will, and why reviewing your estate planning after a relationship breakdown is important.
This information is general only. You should obtain legal advice based on your individual circumstances.
Can an Ex De Facto Partner Inherit From Your Estate?
Many people believe that an ex de facto partner cannot inherit after a separation because they were never married. Others assume that dividing assets during separation removes any future financial claims.
Those assumptions are not always correct.
The laws dealing with relationship property settlements are separate from the laws governing Wills and inheritances. A family law property settlement does not automatically change a Will or prevent someone from receiving a gift left to them in their former partner’s Will.
This means an ex de facto partner may still inherit from an estate if the Will remains unchanged or if other succession law rights apply.
Why Updating Your Will After Separation Is Important
Many couples create Wills while they are together and leave their assets to each other. If the relationship later ends, those Wills may no longer reflect their wishes.
Unlike divorce, separating from a de facto partner does not automatically revoke gifts made to that person in your Will.
If you separate from your de facto partner, you should review your Will and consider whether it still reflects your current intentions.
Case Study: Blyth v Wilken
The Western Australian case of Blyth v Wilken considered whether an ex de facto partner could inherit under a Will that had not been updated after separation.
In this case, the deceased made a Will while he was in a de facto relationship. The Will left most of his estate to “my de facto wife Kathrine”.
The couple separated approximately three years before the deceased died. However, he never updated his Will after the relationship ended.
The Court considered the wording used in the Will. It found that the deceased did not simply intend to benefit Kathrine as an individual. Instead, he intended to benefit her because she was his de facto wife.
Because Kathrine was no longer his de facto wife when he died, the Court found that the gift failed. Other family members then benefited from the estate instead.
Could Different Wording in the Will Have Changed the Outcome?
The outcome in Blyth v Wilken depended heavily on the wording used in the Will.
If the Will had simply referred to Kathrine by name rather than describing her as “my de facto wife Kathrine”, the result may have been different.
In that situation, Kathrine may have received the gift despite the couple separating before the deceased’s death.
However, it is important to remember that Blyth v Wilken was a decision made by a single Master. The decision does not bind the Western Australian Supreme Court or other courts, which may reach a different conclusion in similar circumstances.
Therefore, referring to someone as “my de facto partner” in a Will does not guarantee that they will be excluded from benefiting from your estate after separation.
How Does Separation Affect Wills in NSW?
In New South Wales, succession law creates specific rules about how relationship breakdowns affect Wills.
The Succession Act 2006 (NSW) governs Wills, estate administration, and claims against estates in New South Wales.
Under NSW law, divorce can automatically revoke certain provisions in a Will relating to a former spouse. This includes gifts left to a former spouse and appointments of a former spouse as executor, trustee, or guardian, unless the Will clearly states otherwise.
However, separation from a de facto partner works differently. Ending a de facto relationship does not automatically remove provisions benefiting that person in your Will.
Can an Ex De Facto Partner Make a Family Provision Claim?
The Succession Act 2006 (NSW) also allows eligible people to make a Family Provision Claim against an estate.
An ex de facto partner may qualify as an eligible person in certain circumstances. However, eligibility alone does not guarantee success.
The Court considers several factors when deciding whether to make an order, including the relationship between the parties, the deceased’s obligations, the claimant’s financial circumstances, and the needs of other beneficiaries.
What Should You Do After Ending a De Facto Relationship?
After separating from a de facto partner, you should consider reviewing your estate planning documents.
| Action | Why It Matters |
|---|---|
| Review your Will | Ensures your beneficiaries reflect your current wishes. |
| Update beneficiary details | Prevents unintended gifts to former partners. |
| Review executor appointments | Ensures the right person manages your estate. |
| Obtain legal advice | Helps identify potential succession issues. |
Frequently Asked Questions
Does separation cancel a Will in NSW?
No. Separating from a de facto partner does not automatically cancel or change your Will in New South Wales. Your former partner may still benefit if the Will remains unchanged.
Can my ex de facto partner inherit if we separated years ago?
Yes, it is possible. If your Will still leaves assets to your former partner, they may still receive that inheritance unless legal steps change the position.
Does dividing assets after separation prevent inheritance claims?
No. A property settlement deals with relationship assets but does not automatically override provisions in a Will or succession law rights.
Should I update my Will after a de facto relationship ends?
Yes. Updating your Will after a significant life event, including separation, helps ensure your estate reflects your current wishes.
Get Legal Advice About Estate Planning After Separation
A properly prepared Will should accurately reflect your intentions and account for significant life changes, including the end of a de facto relationship.
Clearly identifying beneficiaries and reviewing your Will regularly can help reduce uncertainty and prevent disputes after your death.
If you or someone you know needs advice about Wills, estate planning, or inheritance rights after separation, contact us on (02) 9818 2888 or email [email protected].