Not necessarily. In Western Australia, if you die without a Will and leave both a spouse and children, your estate is divided between them under a statutory formula. Your spouse receives your household chattels, a fixed sum and a share of what’s left. Your children take the rest.
Many people believe that everything they own passes to their spouse simply because they’re married. It’s one of the most common assumptions we correct.
What passes to your spouse automatically?
Property you own as joint tenants passes to your spouse when you die and it does so outside your estate entirely. That’s the nature of a joint tenancy and it happens whether you have a Will or not.
Property owned as tenants in common or in your sole name is different. It forms part of your estate and may not pass to your spouse at all.
What happens to the rest?
If you die without a Will, the Administration Act 1903 (WA) sets out an arbitrary formula for dividing your estate.
Where you leave a spouse and children, your spouse receives your household chattels, a fixed sum set by the Act and a share of the balance. Your children take the remainder between them.
Where you leave a spouse and no children, your spouse doesn’t necessarily take everything either. The estate can be shared with your surviving parents, brothers and sisters.
The fixed sums have changed several times and depend on the date of death. For the current figures see What are the rules of intestacy in Western Australia?
What if you’re separated or in a de facto relationship?
This is where it gets (even more!) complicated.
Separation doesn’t change anything. If you’ve separated but never divorced, your spouse is still your spouse for the purposes of the intestacy rules and still first in line.
A de facto partner has to meet a statutory test before they inherit anything and proving the relationship after your death becomes their problem to solve.
Where you leave both a legal spouse and a de facto partner, the Act divides the spousal entitlement between them.
What about superannuation?
Superannuation usually isn’t part of your estate at all, so the intestacy formula may not reach it. Usually, the fund decides who receives your super death benefits unless you’ve made a binding death benefit nomination. For many couples super is the largest asset in the picture. See Estate planning trap no. 1 – superannuation.
Frequently asked questions
Does my wife get the house if I die without a Will?
If you own it as joint tenants, yes and it passes outside your estate. If you own it as tenants in common or in your sole name, your share forms part of your estate and is divided under the formula.
Do my children get a share even if they’re adults?
Yes. The formula doesn’t distinguish between adult and minor children and it doesn’t consider whether they need the money or whether your spouse does.
Can my spouse just agree with the children to keep everything?
Adult beneficiaries can agree to vary how an estate is distributed, but it needs everybody’s consent and may have tax and duty consequences. Where a beneficiary is a child, it can only be done with the approval of the Court.
How do I make sure my spouse gets everything?
Make a Will saying so. It takes one appointment and it removes the question entirely. See What are mirror Wills?
Make a Will and be certain
You can avoid all of this by making a Will and setting out your wishes clearly. Most straightforward Wills take one appointment and we tell you the fixed price before we start.
Book an appointment or call the Wills team on (08) 9220 4433.
See our Wills service and pricing.
This article is general information and not legal advice.
