General Information Only: This article is general information, not legal advice. For advice specific to your circumstances, consult a qualified…
In Queensland, who inherits from an estate depends on whether there is a valid will. If there is, the estate passes to the beneficiaries named in it. If there is not, the Succession Act 1981 (Qld) intestacy rules decide who inherits, prioritising the spouse and children. Either way, an eligible spouse, child or dependant left without adequate provision can apply to the Supreme Court for a family provision order.
Cultural and community factors can also shape how an estate is understood and administered. For Aboriginal and Torres Strait Islander families, additional considerations may apply to will-making and estate distribution, which are covered in our guide to Indigenous Australian wills, customary law and Queensland legal requirements.
Quick answer: A valid will controls who inherits, subject to the court’s family provision power. Where there is no will, a surviving spouse (including a qualifying de facto or civil partner) takes the household chattels, the first $150,000, and one-half of the residue if there is one child or one-third if there are two or more children, with the children sharing the balance equally. A spouse with no children takes everything; children with no spouse share equally. A spouse, child (including a stepchild) or dependant who is left out generally has six months from death to notify the executor and nine months to file a family provision application under section 41(8).
General information only. This article explains Queensland succession law in general terms and is not legal or financial advice. Entitlements depend on the individual estate, and legislated amounts and thresholds — including the $150,000 statutory legacy, which is set by regulation — can change. Confirm your position with a Queensland succession lawyer before acting.
Key Takeaways
- A valid will decides who inherits; without one, the Succession Act 1981 (Qld) intestacy rules apply automatically.
- A surviving spouse takes household chattels, the first $150,000, and one-half or one-third of the residue depending on how many children survive.
- A de facto partner is treated as a spouse only if the couple lived together on a genuine domestic basis for a continuous period of at least two years ending on death (s 5AA).
- Children (including adopted children) share equally; stepchildren are not automatic intestacy heirs but can claim family provision as a “child” under s 40 without proving financial dependency.
- A family provision application is generally filed within nine months of death (s 41(8)); giving the executor written notice before six months helps prevent a distribution that would be protected under s 44.
How Inheritance Is Decided in Queensland
Three legal frameworks determine who receives what from a Queensland estate: the deceased’s will, the statutory intestacy rules, and the family provision jurisdiction of the Supreme Court. Understanding how they interact is the key to knowing your entitlements.
Wills and probate
A valid will lets a person direct exactly who inherits their assets. In Queensland a will must be in writing, signed by the will-maker and witnessed by two people to be valid. The executor named in the will usually applies for a grant of probate, which is the Supreme Court’s confirmation that the will is valid and that the executor may administer the estate. For most estates with real property or significant assets, a grant is needed before assets can be transferred. If you are dealing with a will, our guides on how to make a will and what probate is and how long it takes explain the process, and the cost of probate in Queensland sets out the fees.
Intestacy: dying without a will
When someone dies without a valid will, they die “intestate”, and the Succession Act 1981 (Qld) decides who inherits. The distribution rules in sections 35 to 37 set a fixed order of priority, starting with the spouse and children and moving outward to parents, siblings and more distant relatives only if there is no closer family. No one can change this order; it applies regardless of what the deceased may have said informally. Our detailed guides cover what happens when someone dies without a will and how the estate is split between family members.
The 30-day survival rule
A beneficiary under a will must generally survive the will-maker by 30 days (s 33B), unless the will shows a contrary intention. On intestacy, a person entitled to share in the residuary estate must also survive the deceased by 30 days (s 35(2)); if they do not, that share is treated as if they had died first. This rule matters most in common-accident and blended-family situations, where it can change who ultimately receives an asset.
Family provision: the court’s overriding power
Even a clear will or the intestacy rules can be adjusted by the Supreme Court. Under Part 4 of the Succession Act 1981 (Qld), an eligible person left without adequate provision for their proper maintenance and support can apply for a “family provision order”. The court can redirect part of the estate to that person, effectively overriding the will or intestacy distribution. This is why an inheritance is never truly final until the family provision period has passed. If you are weighing a claim, our guide on challenging a will in Queensland explains who is eligible and how the process works.
Inheritance Rights of Spouses and Partners
A surviving spouse has a strong position under Queensland intestacy and family provision law. Under a will, a spouse usually receives whatever the will-maker chose to leave them. On intestacy, the spouse is first in line.
What a spouse inherits on intestacy
Where there is no will, the surviving spouse’s entitlement depends on whether the deceased also left children:
- Spouse and no children: the spouse takes the whole estate.
- Spouse and one child: the spouse takes the household chattels, a statutory legacy of the first $150,000, and one-half of the remaining estate; the child takes the other half.
- Spouse and two or more children: the spouse takes the household chattels, the first $150,000, and one-third of the remaining estate; the children share the other two-thirds equally.
“Household chattels” does not mean every personal item. The statutory definition (s 34A) excludes things such as motor vehicles, boats, aircraft, racing animals, jewellery, clothing, trophies and original artworks, which form part of the general estate instead.
The $150,000 figure is a prescribed statutory amount set by regulation and can change, so confirm the current amount before relying on it. It is also comparatively low: because the spouse’s fixed legacy is modest, a surviving spouse on intestacy is often forced to sell the family home to pay out the deceased’s children. That practical squeeze is one of the strongest reasons to make a will, and it is partly addressed by the shared-home election below.
The shared-home election
A surviving spouse may have the right to elect to acquire the shared home from the estate in satisfaction of their entitlement (ss 39A to 39D). This lets a spouse keep the family home rather than see it sold to fund the children’s shares, subject to the value of the home against their overall entitlement and the statutory procedure.
Married spouse versus de facto partner
Queensland law treats a de facto partner or civil partner as a spouse for succession purposes, but a de facto partner must satisfy the statutory test: living together as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased’s death (s 5AA, applying the meaning of “de facto partner” in the Acts Interpretation Act 1954). There is no shortcut for simply having had a child together. The practical difference is proof: a marriage certificate settles the question, whereas a de facto partner may need to demonstrate the length and nature of the relationship through shared finances, living arrangements and other evidence. Disputes about whether a qualifying de facto relationship existed are a common source of estate litigation.
More than one surviving spouse
Occasionally a person dies leaving both a legal spouse and a qualifying de facto partner. Section 36 deals with this: the two share the single spouse entitlement, either by agreement between them, by a distribution agreement or court order, or, failing that, in equal shares.
Separation, divorce and second marriages
Separation and divorce affect inheritance very differently. A separated but not divorced spouse keeps full intestacy rights and remains a beneficiary under an existing will — only a divorce ends those rights for married spouses (s 15). Ending a civil partnership (s 15A) or a de facto relationship (s 15B) can likewise revoke gifts and appointments to a former partner. Divorce revokes gifts to a former spouse in a will and ends their intestacy entitlement, and a later marriage can revoke an earlier will altogether. Blended families are especially exposed: without planning, a new spouse’s entitlement can substantially reduce what children from an earlier relationship receive. If your circumstances have changed, our guide on updating your will after major life events explains when a review is essential.
Children’s Inheritance Rights
Children are second in the intestacy order, immediately after a spouse, and they are a core group of people who can bring a family provision claim if a will leaves them out.
Children named in a will
A will-maker is generally free to leave their estate however they wish, including giving children unequal shares or nothing at all. However, a child left without adequate provision can apply for family provision, and the court will weigh the child’s financial position, the size of the estate and the relationship. A will that disinherits a child is therefore not automatically safe from challenge.
Children under intestacy
Where there is no will, children take the share left after the spouse’s entitlement, or the whole estate if there is no surviving spouse, dividing it equally between them. If a child has already died but left their own children, those grandchildren generally step into the deceased child’s share. Children inherit equally regardless of age, and a share for a minor is held on trust until they reach adulthood.
Stepchildren and adopted children
Adopted children are treated in law exactly like biological children and have the same intestacy rights. Stepchildren are different on intestacy: they are not automatic heirs, because there is no legal parent-child relationship for intestacy purposes. For family provision, however, a stepchild can claim as a “child” in their own right under section 40, provided the stepchild relationship still existed at the deceased’s death (s 40A) — they do not need to prove they were financially dependent. That narrower “dependant” test applies to a separate category of claimants who were wholly or substantially maintained by the deceased, not to stepchildren.
Comparing spouse, partner and children’s entitlements
| Situation (no will) | Spouse / partner | Children |
|---|---|---|
| Spouse, no children | Whole estate | — |
| Spouse + 1 child | Chattels + $150,000 + ½ residue | ½ residue |
| Spouse + 2 or more children | Chattels + $150,000 + ⅓ residue | ⅔ residue, shared equally |
| Children, no spouse | — | Whole estate, shared equally |
| No spouse or children | — | Passes to parents, then siblings, then wider family |
Family Provision: Overriding the Distribution
A family provision claim is the main way inheritance entitlements are challenged in Queensland. It does not attack the validity of the will; instead it asks the court to redirect part of the estate to someone who has been inadequately provided for.
Who can claim and the strict time limits
Under section 41 of the Succession Act 1981 (Qld), the eligible applicants are the deceased’s spouse (including a qualifying de facto or civil partner), a child (which by s 40 includes a stepchild and an adopted child), and a dependant who was being wholly or substantially maintained by the deceased. The time limits are strict and easy to miss:
| Step | Timing | Basis |
|---|---|---|
| Written notice to the executor | Best given before 6 months from death | Prevents an executor relying on s 44 protection for a proper distribution made after 6 months without notice |
| File the application in the Supreme Court | Generally within 9 months of death | Succession Act 1981 (Qld) s 41(8) |
The six-month notice is not itself the application deadline; its effect is that, until it is given, an executor who distributes after six months is protected under section 44. Once the estate has been distributed there may be nothing left for the court to redirect, so prompt notice is critical. Late applications need the court’s permission and are not guaranteed.
What the court weighs
In deciding whether provision is inadequate, the court considers the applicant’s financial need and resources, the size and nature of the estate, the applicant’s relationship with the deceased, any contributions they made, and any competing claims on the estate. A strong moral claim with genuine need and a sizeable estate is far more likely to succeed than a claim by a financially secure adult against a small estate. For related reading, see our guides on disputing how an intestate estate is split and the role of beneficiaries in estate administration.
Practical Examples
Example 1: Married with one child
Ravi dies without a will, leaving his wife Mia and their adult daughter. The estate, after the household chattels, is worth $400,000. Mia takes the chattels plus the first $150,000, leaving $250,000. She then takes one-half of that ($125,000) and the daughter takes the other $125,000.
Example 2: De facto relationship, no children
Sam dies without a will and without children, but had lived with a de facto partner on a genuine domestic basis for six continuous years ending at his death. Because that satisfies the two-year test in s 5AA, the partner is treated as a spouse and inherits the entire estate — provided the qualifying de facto relationship can be proven.
Example 3: Second marriage and stepchildren
Jo dies without a will, survived by her second husband and two children from her first marriage. The husband takes the chattels, the first $150,000 and one-third of the residue; the two children share the remaining two-thirds. Jo’s stepchildren from the second marriage receive nothing on intestacy, but if their stepchild relationship with Jo still existed at her death, they may bring a family provision claim as a “child” under s 40 — without having to prove they were financially dependent on her.
Assets That Pass Outside the Will or Intestacy
One of the most misunderstood parts of Queensland inheritance is that not everything a person owns is controlled by their will or by the intestacy rules. Several important assets pass under separate legal rules, which can dramatically change who actually receives value from an estate.
- Superannuation. Super is not automatically an estate asset. It is paid at the trustee’s discretion or according to a valid binding death benefit nomination, and may go directly to a dependant rather than through the will.
- Jointly owned property. Property held as joint tenants passes automatically to the surviving owner by survivorship and never forms part of the estate, regardless of what the will says.
- Assets held in trust. Assets owned by a family or discretionary trust belong to the trust, not the deceased, so they are distributed under the trust deed rather than the will.
- Life insurance. A policy with a nominated beneficiary is paid directly to that person and bypasses the estate.
Because these assets sit outside the will, a person can have a carefully drafted will and still leave family members with far less than expected. Reviewing nominations and ownership structures alongside the will is the only way to make sure the overall plan matches your intentions.
Common Pitfalls and How to Avoid Disputes
Most inheritance disputes trace back to a handful of avoidable problems: an outdated will, an unclear or informal document, assumptions about de facto status, and failure to plan for a blended family. The following steps reduce the risk of conflict.
- Keep the will current. Review it after marriage, divorce, a new child or a significant change in assets, since a later marriage can revoke an earlier will and divorce revokes gifts to a former spouse.
- Communicate your intentions. Explaining an unequal distribution to family, ideally in writing kept with the will, reduces the surprise that fuels claims.
- Get advice on structures. Superannuation, jointly owned property and assets in trust often pass outside the will, so a will alone may not reflect your full intentions. Tax can also apply on later dealings — see our guide on inheritance tax implications in Australia.
- Plan for family provision. If someone with a strong claim is deliberately left out, take advice on how to structure the estate to withstand a challenge.
Frequently Asked Questions
Does a spouse automatically inherit everything in Queensland?
Only if there are no children. With children, the spouse takes the chattels, the first $150,000, and one-half or one-third of the residue depending on how many children survive.
Do de facto partners have inheritance rights?
Yes, but only if they qualify. A de facto partner is treated as a spouse on intestacy where the couple lived together on a genuine domestic basis for a continuous period of at least two years ending on death (s 5AA). The relationship may need to be proven.
Can a stepchild contest a will in Queensland?
Yes. A stepchild can bring a family provision claim as a “child” under section 40, provided the stepchild relationship still existed at the deceased’s death (s 40A). They do not need to prove they were financially dependent.
Does a separated spouse still inherit?
Yes. A separated but not divorced spouse keeps full intestacy rights and remains a will beneficiary. Only divorce ends those rights and revokes gifts to a former spouse.
What is the time limit to contest an estate in Queensland?
Give the executor written notice as early as possible — ideally before the six-month point, after which an executor who has received no notice may distribute with the protection of s 44 — and file any family provision application within nine months of death (s 41(8) of the Succession Act 1981 (Qld)).
Who inherits if there is no spouse and no children?
The estate passes down the intestacy order — to parents, then siblings, then wider relatives such as grandparents, aunts and uncles.