VIC Is Ex-De Facto Entitled to Share of Deceased Estate?

[Leigh]

If someone who has been estranged from ex de facto for 7 years dies but who has a child dies without a will, who is entitled to benefit from deceased estate? Are parents entitled to a share, especially if they have paid a lot of expenses and can prove with bank records? Is there a formula? Is the de facto entitled to a share?

I would expect the child to be included in a share.

 

[Victoria S]

Hi Leigh,

Where there is no will, an estate is distributed in accordance with the rules of intestacy. These are prescribed in the Administration and Probate Act 1958 which lists all those to whom an estate will be distributed (the ‘beneficiaries') and in what order.

The general rules are as follows:

1. if the deceased had a spouse or domestic partner but no children - they receive whole estate. (To be a domestic partner the person must have lived with the deceased as a couple on genuine domestic basis so in this case, an estranged de facto not living with the deceased, would not qualify as a domestic partner)
2. if you have a spouse or domestic partner and children, spouse receives first $100,000 and 1/3 of remainder and children receive remaining 2/3.
3. Where no spouse and no children then parents receive whole state.

If the estate is not that large, it will likely all go to children of deceased. There is no provision for dividing between child and parents of deceased.

I don't know of any basis upon which you can argue for a distribution of estate to reimburse you for funds spent on the deceased, unless you can prove you were dependent on the deceased in which case you may be able to bring a family provision claim. However if you were the ones spending money on the deceased then I doubt this would be the case.