Can same-sex partners contest a will?

The decision to contest a loved one’s will may depend on whether the claimant is an eligible person under the Succession Act 1981 (QLD).

Spouses, children, grandchildren and certain dependents are often entitled to pursue provision from the deceased’s will, but what about same-sex partners?

While Australia does not legally recognise same-sex marriage, gay, lesbian, bisexual and transgender people can still launch an inheritance dispute against a former partner’s estate.

This is because same-sex couples can be considered de-facto spouses provided they meet certain conditions. Anyone unsure about eligibility issues when challenging a will should contact an experienced estate planning lawyer for more information.

Meanwhile, here are some of the factors the Courts may take into account when ruling whether or not a claimant should be seen as a de-facto partner of the deceased:

  • The duration of the relationship
  • Domestic set-ups, such as a shared residence
  • Whether a sexual relationship exists
  • Childcare and support arrangements 
  • Extent of financial dependence or interdependence
  • Arrangements for financial support
  • Reputation and public nature of the relationship
  • Joint ownership, acquisition or use of property
  • The division of household tasks
  • Degree of mutual commitment to a shared life
  • Whether the relationship was registered

Each case is different and it can be difficult to predict which factors judges will place more emphasis on when deciding an individual’s eligibility to make a claim for provision.

If the Courts believe a person is entitled to contest the will, the individual may receive a proportion of the deceased’s estate. However, the judge must take into account the competing needs of the other beneficiaries.

Furthermore, the costs accrued by the executor from defending challenges to the will often come out of the estate. This can significantly reduce the value of the assets available for distribution, which is why it’s important to seek legal advice before proceeding.