‘Does the law allow my wealthy de facto partner to leave me out of his will?’

Mar 29, 2019
One Money Club member is concerned that she'll be mourning more than the loss of her partner if her de facto husband dies before her. Source: Getty

Q. I have been in a de facto relationship for the past 11 years and my partner has indicated that he has not included me in his will. He has financially supported me for this time and is a self-funded retiree. He owns his own home and a holiday home on the coast and one rental in his super fund and an undisclosed amount of cash in about five banks. He has been retired for 10 years. He has told me I will have to go on the pension if he passes before me and won’t discuss any further details. Do I have any rights or say in what happens to my future? Am I destined to live in a rented apartment or with my children?

A. You are not able to tell him or require him to provide for you in his will. However, if you are a de-facto couple and have remained so when he dies before you, you would be entitled to challenge his will if he has not provided for you or adequately provided for you. You might also consider whether you should have a family law financial agreement while you are in a de-facto relationship. It would give you some financial protection should you separate.

Q.  I’m wondering if my will includes my superannuation, even if it doesn’t say so specifically? In my will, I have stated that my estate is to be divided equally between my four children, with small gifts for my grandchildren. Do I have to specify what happens to my super?

A. What happens to your super when you die depends on whether you have completed a form called a death benefit nomination with your superannuation fund. That form nominates who you want your super to go to when you die, but you’re restricted as to who you can nominate on it, with only your spouse, child, a dependent or an interdependent eligible.

If you nominate any one of them, the benefit will go directly to them and your will is usually not relevant. However, you can also use the form to nominate your estate to receive the benefit of your super, which means it would go to the people you have nominated in your will. Because you may have completed the form many years ago, it is always best to check to see if you have completed the form and what it says to ensure it aligns with your current wishes.

Q. My daughters husband is very rude to me and treats me with contempt. I would like to know if it is possible to leave my daughter and grandchildren my assets without including him?

 A. You have no obligation to leave your estate to anyone in particular in your will. You can make your will in the way you want. However, if you don’t give any part of your estate to certain types of people, they can challenge your will. These people are a spouse, a child or a dependant. As you can see, none of these include a son-in-law. Therefore, he could not challenge your will if you don’t provide for him.

You need to be careful, however, in providing for both your daughter and your grandchildren. If that means you want to share your estate between them, that could lead your daughter to challenge your will, which would then pit her against her own children. Your grandchildren would not be able to challenge your will, though, unless they were dependant on you when you died.

If you have a question for Starts at 60’s money experts, email it to [email protected].

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

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