Inheritance Rights in Queensland: What Children, Spouses, and Partners Are Entitled To

Disclaimer: The following article is for general educational purposes only and does not constitute legal or financial advice. Inheritance rights can depend on unique family circumstances, the presence (or absence) of a will, and the specific provisions of Queensland’s legislation. If you live in Queensland (or have cross-border assets), consult a qualified solicitor to ensure your estate plan or potential inheritance claim aligns with current laws and procedures.

Who inherits your property after you die? In Queensland, the answer can vary based on whether there’s a valid will, the structure of your family, and the existence of any family provision claims. Below, we explore inheritance rights for children, spouses, and partners—both in cases where a valid will exists and under the default intestacy rules if no will is found. We also discuss how Queensland courts might alter distributions to ensure fair provision if close family members are inadequately provided for.

Basic Concepts in Queensland Estate Law

Wills and Probate

A will is a legal document dictating how an individual (the testator) wants to distribute assets after death. If valid, the testator’s wishes are generally honoured—unless someone successfully contests the will. Probate is the court process verifying the will’s legitimacy and appointing the executor.

Intestacy (No Will)

When someone dies intestate (without a valid will), Queensland’s Succession Act 1981 prescribes a statutory formula to distribute the estate among surviving relatives. Spouses (including de facto partners) and children usually rank high in receiving a share.

Family Provision Claim

Even if there’s a valid will or the intestacy scheme is in play, eligible relatives—such as spouse, child, or dependant—can file a family provision application if they believe the distribution fails to provide them with “adequate” maintenance. The court may adjust shares accordingly.

Inheritance Rights of Spouses in QLD

Spouse vs. De Facto Partner

Under Queensland law:

• Spouse includes a legally married partner.
• De facto partner is someone in a genuine domestic relationship for at least two years (or meeting other criteria such as a child in common), giving them similar inheritance rights as a formal spouse.

If There Is a Will

• Spouses or partners are commonly beneficiaries. The will’s instructions typically specify what they receive, be it the family home, a set percentage of assets, or personal items.
• If the spouse feels inadequately provided for, they can file a family provision claim. The court checks financial need, length of marriage/relationship, contributions to the household, and any moral duty the deceased owed.

If There Is No Will (Intestacy)

Under the Succession Act 1981, the spouse or de facto partner usually inherits some or all of the estate, depending on whether there are surviving children. Typically:

1. If no children, the spouse often inherits the entire estate.
2. If there are children, the spouse may receive a statutory sum (e.g., $150,000) plus a percentage, with the rest to children, or entire estate if below a certain threshold.

(Note: These statutory sums or rules can be adjusted by legislative changes over time.)

Second Marriages / Blended Families

Spouses in second marriages can find themselves in complex estate scenarios if the deceased has children from a prior relationship. While the spouse still holds priority or a significant portion under intestacy, children might also share. This can result in disputes or partial intestacy complications. A well-drafted will typically clarifies how the new spouse is provided for (e.g., life interest in the home) and how children from prior relationships inherit capital.

Children’s Inheritance Rights

Child Beneficiaries in a Will

If the will specifically names children (or stepchildren, if intended), they inherit as the will directs. For minors, setting up a testamentary trust can manage their share until they reach a certain age. If the will excludes a child or heavily favours others, that child might challenge via a family provision claim if they can show financial need or moral entitlement.

Child Heirs Under Intestacy

When no valid will exists, Queensland intestacy rules provide a framework. If the deceased leaves:

• Spouse and children: The spouse typically receives a portion (the first statutory amount) plus half of the remainder if there’s one child, or one-third if more children, with children receiving the balance.
• No spouse, only children: The entire estate is divided equally among children.

Example: If John dies intestate leaving a spouse and two children, the spouse might get $150,000 plus one-third of what remains, while the two children share the other two-thirds equally.

Stepchildren and Adopted Children

Stepchildren do not automatically inherit unless they qualify as a dependant or are explicitly included in the will. They can attempt a family provision claim if they were financially reliant on the deceased. Adopted children are legally treated as the deceased’s children, enjoying the same inheritance rights as biological children.

Family Provision Claims: Overriding Distribution

Queensland’s family provision mechanism ensures that an eligible applicant—spouse, child, or dependant—receives an adequate share. If the will or intestacy fails to provide enough for their maintenance, the court can alter distribution. The main factors the court assesses include:

• Size of the estate.
• Applicant’s financial position, age, health, and resources.
• Competing beneficiaries’ needs.
• The deceased’s obligations and moral duty to care for that individual.

If successful, the court may award the applicant a higher portion, effectively overriding certain will instructions. No-contest clauses typically don’t bar these claims since courts prioritize statutory entitlements over a will’s disclaimers.

Spousal vs. Partner vs. Children’s Entitlements: A Comparison

Below is a table summarising typical entitlements in Queensland:

(Note: The above is a simplified schema; actual statutory amounts or formulas can vary with legislative updates.)

Practical Examples of Beneficiary Entitlements

Example 1: Married with One Child

Steve passes away, leaving a will naming his spouse Linda as the main beneficiary, plus a modest gift to their adult daughter. Because Linda still heavily out-earns the daughter, the daughter might attempt a family provision claim if she feels left out. If they died intestate:

• Linda inherits a statutory sum plus half the remainder; the child gets the other half.
• If the estate is small, Linda might end up with the entire amount.

Example 2: De Facto Relationship, No Children

Amrita had a 5-year de facto partnership with Tom, no children. She passes intestate. Under Queensland’s intestacy rules, Tom is recognized similarly to a spouse, inheriting her entire estate, bypassing siblings or parents.

Example 3: Ex-Spouse and Stepchildren

Paula divorces, later remarries. She has stepchildren but never adopts them. Her new will names only her biological child from a prior union, ignoring the new spouse’s stepchild. On Paula’s death, the new spouse might claim a portion via a family provision claim. The stepchild could attempt a claim if financially dependent, but if no dependency is proven, it might fail.

Common Pitfalls and Disputes

1. Failing to Update Wills After Divorce: If a person’s will remains unchanged, Queensland law might partially revoke bequests to an ex-spouse but possibly not all references (like an executor appointment), causing confusion.
2. Not Accounting for Stepchildren: Unless specifically named or they meet dependency criteria, stepchildren may be unintentionally left out, leading to tensions or attempts at legal claims.
3. Overlooking “De Facto” Requirements: Partners who believe they are defacto might find their relationship not legally recognized if they fail to meet cohabitation/financial interdependence thresholds.
4. Ignoring Family Provision: A parent cutting out a child entirely might see that child bring a successful claim, especially if that child has financial or medical needs.

Avoiding Inheritance Conflicts in Queensland

Communicate Your Intentions

Discuss estate plans with your spouse, children, or relevant parties if comfortable. Surprises lead to misunderstandings and disputes. Clear announcements of distribution rationale often discourage claims.

Seek Legal and Financial Advice

A Queensland-based solicitor ensures you comply with local rules (like how marriage revokes a prior will). If you have business or multiple properties, an estate planner or financial advisor can help structure them effectively.

Periodically Review Your Will

If your family or financial situation changes (marriage, births, major asset acquisitions), update your will to reflect new obligations or advanced planning for children’s future. Let your executor or spouse know the will’s location and general content.

Family Provision Contingencies

Consider the possibility of a family provision claim. If you choose an unequal distribution, keep a letter of explanation so a judge, if later challenged, sees your reasoned logic—though the court retains final discretion.

Frequently Asked Questions

Q1: Does a spouse automatically get everything if there are children?
A: Not if a valid will or the intestacy formula states otherwise. Typically, under intestacy, the spouse receives a statutory amount plus a portion, and the children share the balance.

Q2: Are stepchildren treated the same as biological children under QLD inheritance laws?**
A: No, not unless they are adopted or proven as dependants. They can, however, attempt a family provision claim if financially dependent on the deceased.

Q3: Can adult children disinherited by a will seek recourse?
A: Yes, through a family provision application. Courts consider their financial state, relationship with the deceased, and moral duty factors.

Q4: What if a de facto partner’s relationship was not well-documented?
A: The partner might need to prove the length of cohabitation, financial interdependence, or a child in common to qualify as a spouse for inheritance. If uncertain, they can petition the court, providing evidence of the de facto status.

Q5: How long do I have to file a family provision claim in Queensland?**
A: Typically within 9 months of the date of death. Notification to the executor usually must happen within 6 months of death. Always confirm current timelines with a solicitor.

Key Takeaways & Summary

• Inheritance rights in Queensland revolve around the will’s terms or intestacy rules, shaped by the Succession Act.
• Spouses and de facto partners generally hold high priority, whether under a will or intestacy distribution.
• Children (including adopted) typically share in the estate if no spouse exists or if the spouse’s share is limited by intestacy. Stepchildren do not automatically inherit unless named or proven as dependants.
• Family Provision Claims can override a will or intestacy if the court deems the distribution inadequate.
• Frequent Updates: After divorce, marriage, or significant family changes, rewriting a will is crucial to avoid partial revocation or unintended beneficiaries.

Having an up-to-date, well-articulated will—plus clarity about your spouse, children, and dependent relationships—minimises the risk of disputes and ensures your estate aligns with Queensland’s legal framework and your personal intentions.