More Than One Spouse: What Happens to Your Estate?

This is the second in our series of articles on the uncertainties of death. Click here to read Part 1.

The Uncertainties of Death Series

Myth: “You can only have one spouse for estate purposes… can’t you?”

Not necessarily.

You might be surprised to learn that, for Queensland succession purposes, more than one person can qualify as a spouse of a deceased person.

For example, a person may remain legally married to their first spouse after they separate but before they divorce. If they then form a qualifying de facto relationship with a new partner, both relationships may be relevant when determining who qualifies as a spouse for succession purposes.

Queensland’s Succession Act 1981 contains specific rules about who qualifies as a spouse. The Act can recognise a married spouse and a qualifying de facto partner for succession purposes.

This can make the distribution of a deceased estate more complex and uncertain, particularly where more than one person qualifies as a spouse at the time of death.

Can you have more than one spouse for estate purposes?

For Queensland succession purposes, the answer can be yes.

Section 5AA of the Succession Act 1981 sets out who qualifies as a spouse of a deceased person. This can include a husband or wife and, where the statutory requirements are met, a de facto partner.

A de facto partner generally needs to have lived with the deceased as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death.

This means that a person who remains legally married to one person while living in a qualifying de facto relationship with another person may have more than one person who qualifies as a spouse for succession purposes.

What happens if you die without a Will and have more than one spouse?

If you die without a valid Will, you die intestate.

The Queensland Rules of Intestacy then determine how your estate is distributed.

Where more than one spouse is entitled to all or part of the intestate estate, section 36 of the Succession Act 1981 provides specific rules for dividing that entitlement between the spouses.

The spouses may reach a written agreement about how their entitlement should be divided. A spouse or the personal representative may also apply to the court for a distribution order.

In certain circumstances, the personal representative may distribute the entitlement equally between the spouses after giving the required notices and allowing the relevant period to pass.

The court can also make a distribution order where appropriate. The legislation does not assume that an equal division must always be the outcome.

This means that having more than one spouse can make an intestate estate significantly more complicated to administer.

Why does having more than one spouse make an estate more complicated?

The distribution of a deceased estate can become immediately more complex where more than one person qualifies as a spouse.

This is particularly important because different laws can use different definitions and rules when determining who is entitled to receive a benefit.

For estate purposes, the Succession Act 1981 determines who qualifies as a spouse and how an intestate estate is distributed.

Superannuation can involve a separate set of rules. The person who qualifies as a spouse or dependant for superannuation purposes may not be determined in exactly the same way as for every estate-planning purpose.

This is why you should consider your Will, estate and superannuation arrangements together rather than treating each issue separately.

What if the spouses cannot agree on the estate?

The Queensland intestacy rules provide mechanisms for dealing with an entitlement where more than one spouse is entitled to a share of the estate.

The spouses can enter into a written distribution agreement. Alternatively, a spouse or the personal representative can apply to the court for a distribution order.

If the relevant requirements are met, the personal representative may also be able to distribute the entitlement equally between the spouses after providing the required notices.

These provisions are important because they provide a legal process for dealing with competing spouse entitlements. However, they can also add complexity, delay and uncertainty to the administration of an estate.

Can a spouse make a Family Provision Application?

Yes. Depending on the circumstances, a spouse may be eligible to make a Family Provision Application seeking provision, or further provision, from a deceased estate.

This is separate from the rules that determine how an intestate estate is initially distributed.

For example, an eligible spouse may consider making a claim if they believe the provision made for them from the estate was inadequate for their proper maintenance and support.

Whether someone is eligible to make a claim, and whether a claim may succeed, depends on the circumstances of the individual case.

Having a valid Will does not necessarily prevent an eligible person from making a Family Provision Application. However, careful estate planning can help document your intentions and address potential issues before they arise.

Why is an effective estate plan important when you have complex relationships?

The uncertainties created by multiple spouse relationships can be reduced through an effective estate plan.

A properly prepared Will allows you to document how you want your estate distributed rather than leaving the distribution entirely to the Rules of Intestacy.

Your estate plan should also take account of your family circumstances, including any marriage, separation, divorce or de facto relationship.

It is also important to consider your superannuation arrangements, because your superannuation death benefits may not automatically form part of your estate.

Taking these issues into account can help ensure that your Will and other estate-planning arrangements work together.

What should you consider if you have separated but are not divorced?

If you have separated from your spouse but have not divorced, your relationship status can have important estate-planning consequences.

You may still be legally married to your former partner. At the same time, you may have formed a new de facto relationship that could also be relevant to your estate.

This can create uncertainty about who may have rights or entitlements when you die.

If your circumstances have changed, you should review your Will and broader estate plan rather than assuming that an existing Will still produces the outcome you want.

What should you review in your estate plan?

If your family or relationship circumstances are complicated, consider reviewing:

your current Will;
who you have appointed as your executor;
who you want to benefit from your estate;
what should happen to your estate if a beneficiary dies before you;
your superannuation death benefit nominations;
any previous marriage or de facto relationship;
whether you are separated but not divorced;
whether more than one person may qualify as your spouse for succession purposes; and
whether your estate plan reflects your current relationships and intentions.

These issues can become particularly important after separation, divorce, remarriage or the beginning of a new de facto relationship.

Frequently asked questions about having more than one spouse in Queensland

Can you have two spouses in Queensland?

For Queensland succession purposes, more than one person can qualify as a spouse in certain circumstances. For example, a person may remain legally married to one person while also having a qualifying de facto partner.

What happens if I die with two spouses?

If you die without a valid Will and more than one spouse is entitled to a share of your estate, section 36 of the Succession Act 1981 provides rules for distributing that entitlement. The spouses may reach a written agreement, seek a court order or, in certain circumstances, have the entitlement distributed equally by the personal representative.

Does a de facto partner have the same rights as a spouse in Queensland?

A qualifying de facto partner can be treated as a spouse for Queensland succession purposes. The relevant requirements must be satisfied, including the statutory requirements concerning the de facto relationship.

What happens if I am separated but not divorced?

Separation does not necessarily end a marriage. If you remain legally married and have also entered into a qualifying de facto relationship, more than one person may qualify as a spouse for succession purposes. Your Will and estate plan should therefore be reviewed after separation.

Can a spouse make a claim against my estate?

Depending on the circumstances, an eligible spouse may be able to make a Family Provision Application seeking provision, or further provision, from the estate. The eligibility requirements and prospects of any claim depend on the individual circumstances.

Can a Will prevent disputes between multiple spouses?

A carefully prepared Will can help clarify your intentions and reduce uncertainty, but it cannot necessarily prevent an eligible person from making a claim against an estate. Professional estate planning can help identify and address potential issues before they arise.

Reduce uncertainty with an effective estate plan

Having more than one person who qualifies as a spouse can make estate planning and the administration of a deceased estate considerably more complicated.

This is particularly true where someone remains married to one person but has formed a qualifying de facto relationship with another partner.

If you die without a valid Will, the Queensland Rules of Intestacy determine how your estate is distributed. Where more than one spouse is entitled, specific statutory rules apply to the division of that entitlement.

Spouses may also have rights to make a Family Provision Application, depending on their circumstances.

The uncertainties can be reduced through an effective estate plan that takes your relationships, Will, superannuation and broader circumstances into account.

Contact us to discuss your Will and Estate Planning needs.

The Uncertainties of Death Part 2: Can You Have More Than One Spouse?