Two Spouses – How is my estate divided in the absence of a valid Will?

If you don’t have a Will, the Court will need to decide as to the appropriate proportionate distribution of your estate between your wife and your de facto partner after you die. The Court has extensive discretion without much legislative guidance as to how the estate is divided. At one end of the spectrum the Court might decide to allocate the distribution of the estate entirely to one of the spouses.

Whilst it is illegal to be legally married to more than one person at a time, in certain circumstances you may be considered to have two spouses.
Under section 104 of the Succession Act 2006 (NSW), a spouse is a person who:

a.  Was married to the deceased immediately before their death; or
b.  Was a in a domestic partnership with the deceased immediately before their death.

A ‘domestic relationship’ is a de facto relationship that has been in existence for 2 continuous years or has resulted in the birth of a child.
If a person was married and separated, but never divorced and began a new relationship, they could in fact have two spouses.

The Succession Act sets out what happens to your estate after you die if you die without a valid Will.
Where there is no valid will at the time of death, Chapter 4 of the Succession Act sets out a specific order to who is entitled to the estate. Broadly speaking, the estate will be distributed in the following order of priority as follows:

1.      Spouse;
2.      Children;
3.      Parents;
4.      Siblings;
5.      Grandparents;
6.      Aunts and uncles;
7.      Cousins;
8.      The State.

Where there is a spouse, they will be entitled to the entire estate unless there are children of the deceased and another relationship surviving. In this case, a spouse will receive $350,000 and half of the remaining estate.

When there are multiple spouses the same provisions apply except that the entitlement of the spouse must be shared between the spouses. Section 125 of the Succession Act dictates thatthe estate is to be shared between the spouses either by agreement between the spouses or by Court order. There is no presumption that in the absence of agreement or order the estate is to be split equally between the two but must be shared in some manner.
Therefore, if an individual has been separated from their husband or wife for many years, if not divorced, they may be entitled to a share of the estate, regardless of the wishes of the deceased.

Section 126 of the Succession Act grants a broad discretion to the Court to distribute the estate between two spouses “in any way it considers just and equitable”.  The Court will determine what is just and equitable by reference to a variety of factors as set out in Bailey v Palombo [2020] NSWSC 1209. Factors can include but are not limited too the duration of each relationship, the length of separation, all financial and non-financial contributions made by the parties as well as the nature and extent of the property and the financial circumstances of each party.

However, each case will be determined on its own facts and by reference to the discretion of the Court. As such, there is a significant danger that the Court may make an order that is contrary to your wishes and so it is vitally important your estate needs are considered and finalized by a solicitor.

In order to ensure that your estate is left in the way you wish, it is vitally important to have a valid and binding Will prepared by a solicitor. Having a solicitor prepared Will is the cheapest and most effective way to ensure that your estate is distributed how you want it to be distributed. It is also important to ensure that your previous relationships have legally ended and financial affairs finalized by Court Order or binding financial agreement.