No Will and Multiple Spouses

When a person dies intestate (without a will), the law dictates who the beneficiaries are and their entitlement.

In NSW, a ‘spouse’ for intestacy purposes is a person who was either married to, or was a party to a domestic relationship (i.e. a de facto) with the deceased at the time of death.

Where there are multiple spouses at the date of death and either no children or children of the deceased that are shared with one or more of the spouses, the spouses are to agree on the division of the estate or if they cannot agree then an application needs to be made to the court for an order as to how the estate is to be divided.

In the recent case of Bailey v Palombo [2020] NSWSC 1209 the deceased died intestate and left a spouse he was in a relationship with at the date of death (the Plaintiff) and a spouse he was married to but had been separated from since July 2010 (the Defendant).

In determining whether the Plaintiff was a ‘spouse’ of the deceased under the Succession Act 2006 (NSW), Hallen J adopted the criteria in section 21C(3) of the Interpretation Act 1987 (NSW) which accepts that a ‘de facto relationship’ can exist, even if one person of the relationship is legally married to someone else or is in a registered relationship with someone else.

Orders were granted for the Plaintiff to receive the property she resided in with the deceased and the sum of $500,000 from the deceased’s estate. The Defendant was entitled to approximately $2.1 million from the deceased’s estate.

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