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You Will, your spouse(s)

September 5, 2016

A woman dies with two spouses. Sounds like the start of a saucy tale, doesn’t it?

 

Unfortunately, this is not a fictional story – it’s the reality for certain “blended families” in Queensland.

 

How can you have more than one spouse?

Although the law prevents an individual from marrying more than one person, there is certainly no prohibition against having more than one “spouse”. For the purposes of succession law in Queensland, a person’s spouse is:

 

  • their husband or wife;

  • their de facto partner; or

  • their civil partner.

 

Although a person cannot have more than one husband, wife or civil partner; a person can have a husband, wife or civil partner and a de facto spouse. A de facto spouse is someone who has lived with an individual as a couple on a genuine, domestic basis for at least two years ending on the deceased’s death.

 

We regularly meet with clients who have separated from their husband or wife many years prior, and despite having a long term de facto partner, have never formally divorced their husband or wife. Other than the heartache caused to the new de facto spouse, when that person dies this causes two main issues:

  1. If the person dies without a Will, then their assets will be distributed in accordance with the Intestacy Rules between those two spouses and any children of the deceased; and

  2. Irrespective of whether that person had a Will, both their husband or wife, and their de facto spouse have the right to make a claim for further and better provision against the deceased’s estate (to ‘contest his or her Will’).

 

How to make sure this doesn’t happen to you?

Take the final step in your marriage or civil partnership and divorce your spouse. And always make sure you have a valid Will that reflects your current circumstances and wishes regarding the distribution of your assets upon death.

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