Is It Possible to Dispute the Split of the Estate When Someone Dies Intestate?

When a person dies without leaving a will, they’re said to have died intestate. In Queensland, the estate is then distributed according to intestacy laws, which generally favour immediate family—particularly spouses, de facto partners, and children. But what if someone else feels they’ve been unfairly left out or underprovided for? This article explores whether it’s possible to dispute the division of an intestate estate, the legal grounds for doing so, and how the Queensland courts consider these challenges.

Why Disputes Occur in Intestate Estates

Intestacy laws define who inherits the deceased’s property in fixed proportions¹. However, real-life family situations can be more nuanced:

• Blended families where step-children or half-siblings might miss out.
• A long-term de facto partner not clearly recognised under the law.
• Other dependants (like grandchildren or extended relatives) who relied financially on the deceased.

If these circumstances exist, individuals may question whether the intestacy formula truly meets their needs.

“When no will exists, statutory rules try to fill the gap, but they can’t account for every family dynamic. Disputes often arise from complex relationships or unrecognised dependencies.“
— Estate Administration Specialist, QEL

Legal Framework in Queensland

Under the Succession Act 1981 (Qld), Queensland’s intestacy provisions² outline a distribution hierarchy, giving the spouse and children top priority. However, Queensland law also includes family provision rules that allow eligible persons to challenge an intestate distribution if they deem it insufficient³. Courts balance the standard intestacy formula with an applicant’s claim that they deserve a larger share.

Intestacy in Queensland: An Overview

How Assets Are Split Without a Will

If someone dies intestate, the estate typically follows a structure:

1. Spouse (Including De Facto): May receive the whole estate if no children exist, or a defined statutory legacy plus a portion if children survive.
2. Children: If there is a spouse, the remainder after the spouse’s share is split among children. If no spouse, children share everything equally.
3. Other Relatives: If no spouse or children exist, the estate cascades up or out to parents, siblings, nephews/nieces, etc.

(Note: Stepchildren are usually excluded unless adopted or financially dependent. This can lead to disputes if a stepchild contributed significantly but has no automatic entitlement.)

Grounds for Disputing an Intestate Distribution

Family Provision Applications

Family Provision Claims are the main avenue for challenging an intestate estate’s distribution. Under Queensland law³:

• Eligible Persons often include the spouse or de facto partner, children (including adult children), sometimes stepchildren if financially dependent, and other dependants.
• They must show the intestate split leaves them without adequate provision for their proper maintenance and support.

“A child living with the deceased, reliant on them financially, may argue the intestacy formula doesn’t reflect their genuine needs—leading to a claim for additional funds.” — Estate Litigation Lawyer, QEL

Demonstrating Need or Dependency

To succeed, an applicant typically proves:

• Financial Need: They rely on or require extra support from the estate.
• Relationship: The nature and closeness to the deceased, e.g. dependent stepchild, or adult child with special needs.
• Size of Estate: If the estate is small, there may be limited scope to increase one person’s share without reducing others’ shares.

Courts weigh these factors and also consider other beneficiaries’ entitlements, trying not to overly disadvantage them.

Table: Disputing an Intestate Estate vs. Challenging a Will

(Note: Though the impetus differs—no will vs. questionable will—the family provision route remains the main channel for dissatisfied beneficiaries in either scenario.)

Steps to Challenging an Intestate Distribution

Confirm Eligibility and Timeframes

Applicants should check if they fit an eligible category (spouse, child, dependant). They also must adhere to the time limit—generally within 9 months of the deceased’s date of death, though earlier notice requirements might apply⁴. Missing deadlines complicates or sometimes negates claims.

Seeking Legal Advice or Mediation

Next:

1. Consult a Solicitor: Evaluate the claim’s likelihood of success, given the estate’s size, other beneficiaries’ entitlements, and your financial situation.
2. Notify the Administrator: If they’re about to distribute the estate, they might pause final distribution to await the claim’s resolution.
3. Attempt Settlement: Many families settle out of court—agreeing to reallocate certain funds or assets to accommodate the claiming party.

Possible Court Proceedings

If mediation fails, the applicant files a family provision application in the Supreme Court. The court reviews:

• The applicant’s financial resources and needs,
• The beneficiaries’ positions,
• The estate’s total value,
• The nature of relationships.

If the court finds the intestate distribution inadequate, it adjusts the shares so the applicant receives more. The rest might get correspondingly less.

“Courts aim for fairness—balancing a claimant’s dire need with other relatives’ rightful shares. A large estate can accommodate the shift more easily than a small one.” — Estate Litigation Consultant, QEL

Potential Outcomes and Implications

1. Increased Share for the Claimant: The court might award a lump sum or certain assets, effectively reducing others’ portions.
2. Administrative Delay: The estate distribution may be paused until the claim is settled or litigated.
3. Costs: Court costs often come from the estate, but if a claim is deemed frivolous, an applicant might face adverse cost orders.

(Example): If an adult child with significant disabilities claims the intestacy share is insufficient compared to a financially secure spouse, the court may reallocate some portion from the spouse’s or siblings’ share to ensure the child’s care is covered.

Practical Example: Disputing an Intestate Share

Scenario: Daniel dies intestate in Queensland. He leaves behind:

• A spouse (Tina) of two years,
• Two adult children (Leo and Mia) from a previous marriage, who are independent,
• A stepdaughter (Hannah), 16, fully financially dependent on Daniel.

Under intestacy²:

• Tina might receive the first $150,000 (statutory legacy) plus a portion of the residue.
• Leo and Mia share the remaining portion.
• Stepdaughter Hannah is not automatically included as a “child” unless adopted or recognized in some other legal capacity. She might end up with nothing under strict intestacy distribution.

Challenge: Hannah’s guardian or mother might lodge a family provision claim for Hannah, alleging she was truly dependent on Daniel and deserves an inheritance to fund her education and support. The court then evaluates:

• Hannah’s age, living arrangements, financial needs,
• Tina’s resources, and the children’s circumstances,
• The estate’s total value.

Outcome: The court could award Hannah a portion, effectively reducing Tina’s or Leo and Mia’s shares from the standard intestacy formula.

Frequently Asked Questions (FAQ)

Q1: Does a stepchild automatically have a claim if there’s no will?
A: Not automatically. Stepchildren aren’t recognised as “children” for intestacy unless legally adopted. However, they might file a family provision claim if financially dependent⁴.

Q2: Can adult children contest their intestacy share if they simply “feel” it’s too small?
A: Adult children must show more than dissatisfaction—they must prove genuine need or that the distribution is inadequate for their support. The court rarely reassigns shares for adult children who are self-sufficient.

Q3: If the estate is small, is it worth disputing?
A: Possibly not. The cost and time of litigation might outweigh any potential gain. A quick legal consult clarifies if a modest estate leaves room for meaningful adjustments.

Q4: Can the administrator just change the intestacy formula to avoid a claim?
A: No. Administrators must follow the law. They can’t deviate unless all adult beneficiaries consent or a court modifies distribution after a claim.

Q5: Does this process differ if the deceased had partial intestacy?
A: Partial intestacy arises when a will fails to address all assets. The unaddressed assets follow intestacy distribution. The process for disputing is similar—family provision remains an available route.

Dying without a will triggers a standard distribution formula in Queensland, but that doesn’t mean the outcome is immune to challenge. Eligible family members who feel shortchanged or excluded can use family provision laws to seek a larger share. Stepchildren or de facto partners unrecognised under normal intestacy can also attempt to prove financial dependence. The administrator overseeing an intestate estate must remain neutral, aware that any potential disputes may delay final distribution.

Ultimately, while intestacy aims for a fair default arrangement, families with unique needs—or unrecognised dependencies—might successfully dispute the split if they demonstrate genuine circumstances warranting an improved inheritance.

Key Takeaways:

1. Intestacy Distribution: Follows statutory formulas, prioritising spouse and children.
2. Disputes: Handled via family provision claims, focusing on the applicant’s financial need or dependence.
3. Eligible Claimants: Spouse, children, sometimes stepchildren or dependants.
4. Court Balances: Each beneficiary’s stake vs. the claimant’s needs.
5. Timelines: Claims generally lodged within 9 months of death, though earlier notice might be required.

By understanding how disputes arise and the legal recourse available, individuals in blended families, de facto relationships, or dependencies can see that intestacy isn’t always final. If the statutory shares fail to reflect genuine needs, Queensland courts have the power to adjust them—ensuring a more equitable resolution.