Case update: De facto separation – who is entitled to the deceased’s estate?

Gillian Miranzi

• Gillian Miranzi

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A recent judgement in the Supreme Court of Tasmania outlines what can occur if a deceased and their de facto partner separate just prior to the deceased’s death.

Facts

In the case of GFR v SRP [2023] TASSC 15, the deceased resided with his de facto partner and one minor child of the relationship.

On 29 August 2021, the deceased and his de facto partner engaged in an argument and subsequently, the partner left the family home with the child.

After leaving the home, the partner stated to her friends in messages that the relationship was ‘over’ and that the separation was ‘very definite, very permanent’. The partner had returned her engagement ring and packed all her belongings. Evidence was provided that the deceased believed the relationship to have come to an end.

The deceased died shortly after the argument on 4 September 2021.

After the deceased’s death, as per section 6 of the Intestacy Act 2010 (Tas), the partner applied for Letters of Administration, and she claimed her entitlement to the deceased’s entire estate. However, the deceased’s father claimed that the next of kin was the child of the relationship and accordingly, the one that is entitled to the entire estate. He based this on his belief that the deceased and his partner had ceased the relationship prior to his death. The deceased’s father and brother brought a claim against the deceased’s partner.

Decision

In reaching their decision, the Court considered whether a significant relationship existed between the deceased and the partner at the time of his death.

The Court considered factors listed in the Relationships Act 2003 (Tas), and they noted the act of separation does not on its own warrant an intention to bring the relationship to an end. The intention to sever a relationship must be permanent and be acted upon, and a temporary separation does not satisfy the Court that the relationship has ended.

The Court held that there was a ‘lack of a permanent decision to withdraw from the relationship’ from both the deceased and the partner. Words and actions performed in the heat of the moment are not sufficient to indicate that the parties formed a permanent decision to end the relationship, especially if the parties did not have an opportunity to calm down and reflect on their quarrel.

The decision was made on the basis that the partner had spoken to a solicitor shortly after leaving the home, and she had decided to not take any further action. This demonstrated to the Court that she had not formed an intention to permanently leave the relationship. This action (alongside other actions) was enough to satisfy the Court that a significant relationship existed between the deceased and the defendant at the time of the deceased’s death. Therefore, the partner was entitled to the entire estate.

Conclusion

If a partner fails to have made a permanent decision regarding withdrawing from the relationship prior to the deceased’s death, then a court can be persuaded to decide that a relationship did exist at the date of death.

In light of the above and with the increase of de facto partners, it is important that you ensure that all your estate planning documents are prepared carefully taking into account your situation.