In particular, why it is important when you die?
If you die without a Will, the rules of intestacy determine who inherits your assets and property.
- Section 111 of the Succession Act (“the Act”) provides that if a person dies intestate leaving a spouse but not children, the spouse is entitled to the whole of the estate.
- Section 104 of the Act defines a spouse to include as person who was in a domestic partnership with the deceased immediately before the death.
- Section 105 of the Act goes on to define a domestic partnership as a de facto relationship that has been in existence for a continuous period of 2 years, or which has resulted in the birth of a child.
This means that unless there is a child of the relationship, to receive their share of the estate, the partner must prove that they have been in a de facto relationship with the deceased for a continuous period of 2 years immediately before the date of death.
How do you prove this?
The Estate of the late Shirley Joan Violet Gardner provides a good example of the evidence that will be considered and the uncertainty that arises when trying to determine whether a de facto relationship existed or not.
Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney  NSWSC 1324
During her lifetime, Shirley Gardner was married three times. Her first marriage ended in divorce; her second and third husbands died. Shirley only ever had one child – a daughter born during her first marriage named Gaye-Marie.
In 1988, when Gaye-Marie was 29 years old, she began a relationship with Juan Jose Bernengo who everyone called Marco. Marco was 20 years older than Gaye-Marie but for almost 20 years they were de facto partners.
In late 2004, Gaye-Marie was diagnosed with a brain tumor.
During the long 2 and a half years of Gaye-Marie’s illness, up until her death in 2007, Marco and Shirley spent a lot of time together and supported each other emotionally.
Before her death, Gaye-Marie and Marco had lived in a flat on the first floor of Shirley’s house in Cammeray, Sydney. Six months after Gaye-Marie’s death, Shirley invited Marco to move upstairs with her, in the bedroom next door.
From that time, until Shirley’s death in 2017, Marco was her closest companion. They went on holidays together, attended family events together, they went to plays and out to dinners together.
Shirley died on 19 June 2017 at the age of 87. Her estate was worth approximately $3,500,000.
Shirley died without a Will.
Marco applied to the Supreme Court of NSW claiming to be Shirley’s de facto partner and seeking to receive the whole of her estate under the laws of intestacy.
His application was opposed by Shirley’s nephews and nieces who were set to inherit the estate if it was found that Shirley had died without a de facto partner.