If you are in a de facto relationship in NSW, your partner can make a claim on your estate when you die, and you can make a claim on theirs. Under the Succession Act 2006, a person living in a de facto relationship at the date of death is an eligible person who may apply for a family provision order from the NSW Supreme Court. That right exists whether or not there is a valid will. The governing statutes are the Succession Act 2006 and the Property (Relationships) Act 1984, and Simons George Legal regularly advises clients on both sides of these matters.
Start here if you are not sure where you stand:
- Check whether your will names your de facto partner and reflects your current intentions
- Confirm your superannuation fund holds a current, binding death benefit nomination in your partner’s favour
- If you are an executor and a de facto partner may have a claim, pause distributions and get legal advice before releasing any assets
- Book a free 30-minute case assessment with a wills and estates lawyer to understand your position
Table of Contents
- What counts as a de facto relationship in NSW?
- Who can make a claim on a deceased estate in NSW?
- How does a de facto relationship affect a will, intestacy and superannuation?
- How do you make a family provision claim in NSW?
- What should executors do if a de facto partner may make a claim?
- How do you protect your de facto partner through estate planning?
- How Simons George Legal can help with de facto relationship and will issues
- Funding your legal matter — No Win, No Fee
- Key takeaways
- A lawyer’s view on the mistakes that cost people most
- Ready to sort out your estate? Simons George Legal can help
- Useful authoritative sources
- FAQ
What counts as a de facto relationship in NSW?
The Property (Relationships) Act 1984 s4 defines a de facto relationship as two adult persons who live together as a couple and are not married to each other or related by family. Courts apply a broad, fact-intensive test. The factors a court may weigh include:
- Duration of the relationship
- Nature and extent of shared residence
- Whether a sexual relationship exists
- Financial dependence or interdependence between the parties
- Ownership, use and acquisition of property
- Degree of mutual commitment to a shared life
- Care and support of children
- Performance of household duties
- Reputation and public aspects of the relationship
No single factor is decisive. A court can find a de facto relationship exists even where some factors point the other way, and it can attach whatever weight to each factor seems appropriate on the facts. Registered relationships under the Relationships Register Act 2010 are treated as de facto relationships for these purposes.
The critical date for succession claims is the date of death, not the date a claim is filed. A separation or informal break before death may affect eligibility, which is why the state of the relationship at the moment of death matters so much.
Pro Tip: Keep contemporaneous records that document the relationship: shared utility bills, a joint lease, bank statements showing a common address, and correspondence addressed to both of you. If a family provision claim is ever made or defended, this evidence can be decisive.
Who can make a claim on a deceased estate in NSW?
Under Succession Act 2006 s57, the following persons are eligible to apply for a family provision order:
- A spouse of the deceased
- A person living in a de facto relationship with the deceased at the time of death
- A child of the deceased
- A former spouse of the deceased
- A person who was wholly or partly dependent on the deceased and a grandchild or member of the household
- A person in a close personal relationship with the deceased at the time of death
Children of a de facto relationship are treated the same as children of a marriage for eligibility purposes. A “close personal relationship” under the Act covers two adults living together where one provides domestic support and personal care to the other, but it excludes marriages and de facto relationships (those are covered separately).
Being an eligible person only opens the door. It does not guarantee a successful claim. The NSW Supreme Court, sitting in its family provision jurisdiction, balances the claimant’s needs and contributions against the size of the estate, the deceased’s obligations, and the competing interests of other beneficiaries. A de facto partner with a strong financial need and a long relationship history will generally have a stronger claim than one with independent means and a short relationship.
How does a de facto relationship affect a will, intestacy and superannuation?
The three areas where de facto status has the most practical impact are existing wills, intestacy, and superannuation nominations. They operate differently, and confusing them is one of the most common mistakes people make.
| Scenario | What happens to a de facto partner |
|---|---|
| Valid will that names the partner | Partner receives what the will provides; may still apply for family provision if the provision is inadequate |
| Valid will that does not name the partner | Partner is an eligible person and may apply for family provision from the NSW Supreme Court |
| No valid will (intestacy) | Distribution follows intestacy rules under the Succession Act; a de facto partner qualifies as a “domestic partner” only if the relationship lasted at least 2 continuous years or produced a child |
| Superannuation death benefit | Governed by the fund’s trust deed and any binding death benefit nomination; not automatically part of the estate |
A few traps deserve specific attention.
Marriage revokes a will. Under Succession Act 2006 s12, marriage automatically revokes an existing will unless the will was made in contemplation of that specific marriage. If you move from a de facto relationship into a marriage without updating your will, your previous will is void. The exception applies where the will expressly contemplates the marriage, but that requires careful drafting.
Intestacy and the two-year rule. The Succession Act treats a de facto partner as a “domestic partner” for intestacy purposes only where the relationship was continuous for at least two years or resulted in the birth of a child. A shorter relationship, even a genuine one, may leave a partner with no automatic share of the estate under intestacy rules and reliant entirely on a family provision claim.
Superannuation sits outside the estate. A super death benefit is paid according to the fund’s rules and any binding death benefit nomination, not the will. A nomination that has lapsed or was never made gives the trustee discretion to pay the benefit to any dependant, which may not be your partner.
How do you make a family provision claim in NSW?
The process is sequential, and the time limits are strict.
- Assess eligibility. Confirm you were in a de facto relationship with the deceased at the date of death, applying the Property (Relationships) Act 1984 factors. Gather relationship evidence: shared address records, financial documents, correspondence.
- Engage a wills and estates lawyer. Early advice is critical. A lawyer can assess the strength of your claim, advise on the estate’s likely size, and identify competing claims before you commit to litigation.
- File an application in the NSW Supreme Court. Family provision claims are heard in the Supreme Court. The application must be filed within 12 months of the grant of probate or letters of administration. Filing late requires the Court’s leave, which is not guaranteed.
- Exchange evidence and attempt mediation. Most family provision matters settle before a final hearing. The Court encourages mediation, and a negotiated outcome is usually faster and less costly than a contested hearing.
- Hearing and orders. If the matter proceeds to a hearing, the Court considers the factors set out in s60 of the Succession Act: the claimant’s financial position, the nature of the relationship, contributions made by the claimant, the size of the estate, and the competing claims of other beneficiaries. Orders can include a lump sum, a property transfer, periodic payments, or dismissal of the claim.
The 12-month time limit runs from the grant of probate or administration, not from the date of death. In practice, that means a claimant may have considerably less time than they expect, particularly if probate is granted quickly. Courts do grant extensions in limited circumstances, but the bar is real and the risk of missing the deadline is serious. For a detailed breakdown of time limits and costs, Simons George Legal’s guide covers the procedural detail.
What should executors do if a de facto partner may make a claim?
Executors carry personal liability if they distribute an estate and a valid claim later succeeds. The practical steps to reduce that risk are straightforward, but they require early action.
- Identify all potentially eligible persons before distributing anything, including any de facto partner of the deceased
- Halt distributions if you are aware, or ought reasonably to be aware, of a foreseeable claim
- Obtain legal advice promptly, particularly if the deceased’s relationship history is complex or disputed
- Preserve estate assets and keep clear records of all decisions and communications
- Do not dispose of assets that may be subject to a claim without a written legal opinion or Court direction
- Consider applying to the Court for directions if the position is genuinely uncertain; this protects the executor from personal liability for a wrongful distribution
Where the risk of a claim is real, the appropriate course is often to seek an inter partes stay or the Court’s directions rather than distribute and attempt to recover funds later. Simons George Legal assists executors with probate and estate administration, including applications for Court directions where a contested claim is foreseeable.
How do you protect your de facto partner through estate planning?
The most reliable protection is a well-drafted, current will that expressly provides for your partner. Beyond that, a few coordinated steps significantly reduce the risk of a dispute.
- Review and update your will after any change in relationship status, including the start or end of a de facto relationship or a marriage
- Make a binding death benefit nomination for your superannuation, naming your partner as beneficiary, and check the nomination’s expiry date
- Consider a testamentary trust if your partner or another beneficiary has complex needs, tax considerations, or vulnerability to creditors
- Keep a domestic relationship agreement if you and your partner want to document financial arrangements and intentions during the relationship
- Coordinate your will, super nominations and powers of attorney so they work together rather than creating gaps or contradictions
Separation from a de facto partner does not automatically revoke a will. Unlike divorce, which revokes gifts to a former spouse under the Succession Act, separation from a de facto partner leaves the will intact. If you separate and do not update your will, your former partner may still benefit from your estate or bring a family provision claim. Periodic reviews, particularly after any relationship change, are not optional if you want your estate to reflect your actual intentions. A wills and estates lawyer can help you make or amend a will to close these gaps.
How Simons George Legal can help with de facto relationship and will issues
Simons George Legal is a dedicated wills and estates practice based in Bondi, serving clients across Sydney, the Eastern Suburbs, Northern Rivers and regional NSW. The firm’s services directly relevant to de facto relationship and estate matters include:
- Will drafting and updates tailored to blended families and de facto relationships
- Estate planning that coordinates wills, superannuation nominations and testamentary trusts
- Family provision claims for eligible persons, including de facto partners
- Probate and estate administration for executors navigating complex or contested estates
- Contested will litigation and estate dispute resolution
New clients receive a complimentary 30-minute consultation. During that session, the firm assesses your situation, explains your options, and can advise on whether conditional funding arrangements are available for your matter. For readers who want to understand the full picture of contesting a will in NSW, Simons George Legal’s guide covers eligibility, grounds and procedural steps in detail.
Funding your legal matter — No Win, No Fee
Simons George Legal offers No Win, No Fee arrangements for eligible contested estate matters, including family provision claims by de facto partners. Eligibility is assessed during a free initial consultation, so there is no cost to find out whether you qualify.
This arrangement removes the upfront cost barrier for people with a legitimate claim who might otherwise delay getting advice or abandon a valid entitlement. Early advice protects your rights, particularly given the 12-month time limit that applies to family provision claims.
To book a free case assessment and check whether your matter is eligible for conditional funding, contact Simons George Legal today.
No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.
Key takeaways
A de facto partner in NSW is an eligible person under the Succession Act 2006 and can apply for family provision from a deceased partner’s estate, whether or not a will exists.
| Point | Details |
|---|---|
| De facto partners can claim | A person in a de facto relationship at the date of death is an eligible person under Succession Act 2006 s57. |
| Intestacy has a two-year threshold | A de facto partner qualifies as a domestic partner for intestacy purposes only if the relationship lasted at least 2 continuous years or produced a child. |
| The 12-month time limit is strict | Family provision claims must generally be filed within 12 months of the grant of probate; late filing requires Court leave. |
| Executors face personal liability | Distributing an estate before resolving a foreseeable claim can expose an executor to personal liability; pause and seek advice first. |
| Simons George Legal | Offers will drafting, family provision claims, and estate litigation with a free 30-minute consultation and No Win, No Fee for eligible matters. |
A lawyer’s view on the mistakes that cost people most
The pattern I see most often is not malice or complexity. It is delay and assumption. People assume their de facto partner will automatically inherit, so they never update their will. They assume their superannuation nomination is still current, when it lapsed years ago. Executors assume they can distribute quickly to avoid family tension, not realising a partner they have never met has a legitimate claim.
The Succession Act gives de facto partners real rights, but those rights are not self-executing. A partner who does not know the 12-month time limit, or who waits for the estate to “settle down,” can lose a valid claim entirely. And an executor who distributes without checking can end up personally liable for funds that cannot be recovered.
The practical answer is the same in almost every case: act early, get specific advice, and do not assume the law will fill the gaps your documents leave open. A well-drafted will and a current superannuation nomination cost a fraction of what a contested estate claim costs, in money and in family relationships. Simons George Legal’s approach is to give clients a clear picture of their position in the first consultation, then work out the most proportionate path forward.
Ready to sort out your estate? Simons George Legal can help
If you are in a de facto relationship and your will has not been reviewed recently, or if you are facing a potential claim on a deceased partner’s estate, the clearest next step is a conversation with a specialist.
Simons George Legal handles the full range of de facto estate matters from its Bondi base, with virtual appointments available for clients across NSW. The firm’s wills and inheritance law service covers everything from a straightforward will update to complex family provision litigation. For matters involving a dispute or a potential claim, the firm’s estate litigation team can advise on your options and, where eligible, act on a No Win, No Fee basis.
To get started: book a free 30-minute assessment online or by phone, bring your current will (if you have one), your superannuation fund details, and any documents that evidence your relationship. The firm will assess your position and recommend practical next steps.
Useful authoritative sources
- Succession Act 2006 (NSW) — full text of the Act governing wills, family provision and intestacy in NSW
- Succession Act 2006 s57 — Eligible persons (AustLII) — the statutory list of persons who may apply for family provision
- Succession Act 2006 s12 — Effect of marriage on a will (AustLII) — the revocation-by-marriage rule and its exceptions
- Property (Relationships) Act 1984 (NSW) — full text of the Act defining de facto relationships
- Property (Relationships) Act 1984 s4 — De facto relationships (AustLII) — the statutory factors courts apply
- Changing or revoking a will — State Library of NSW — plain-language guide to will revocation rules
- Simons George Legal — Contesting a will in NSW — eligibility, grounds and procedural steps for family provision claims
- Simons George Legal — Intestate succession rules NSW — how estates are distributed without a valid will
FAQ
Does a de facto relationship affect a will in NSW?
Yes. A de facto partner is an eligible person under Succession Act 2006 s57 and may apply for a family provision order from the NSW Supreme Court, whether or not the will names them.
Can a de facto partner take half your assets?
Not automatically. A de facto partner can apply for family provision, but the Court decides the outcome by weighing the claimant’s needs, the size of the estate, and competing claims. There is no fixed entitlement to half.
What is the 12-month de facto rule for estate claims?
Family provision claims must generally be filed within 12 months of the grant of probate or letters of administration. Filing after that deadline requires the Court’s leave, which is not guaranteed, making early legal advice critical.
What are the disadvantages of a de facto relationship for estate purposes?
Unlike a spouse, a de facto partner does not automatically inherit under intestacy rules unless the relationship lasted at least 2 continuous years or produced a child. A de facto partner also has no automatic right to superannuation benefits; those depend on a valid binding death benefit nomination.
How do you protect a de facto partner in your will?
Update your will to name your partner expressly, make a current binding death benefit nomination for your superannuation, and consider a testamentary trust for complex situations. Simons George Legal can draft or review these documents during a free initial consultation.
This article provides general information about NSW law and is not legal advice. For advice specific to your situation, consult a qualified wills and estates lawyer or check the current legislation directly.