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Melbourne Spouse Dies Intestate | Legal Process and Estate Distribution Guide

  • April 21, 2025

Home " Legal Blog " Wills and Deceased Estate Administration " Melbourne Spouse Dies Intestate | Legal Process and Estate Distribution Guide

In Melbourne, if a spouse dies suddenly and intestate (i.e. "dies intestate"), the distribution of his or her estate will be strictly governed by the Victorian Inheritance Act (Succession Act 1958) and the provisions of the 2017 amendments. This situation may result in the distribution of the estate being very different from what you expected, and may even lead to family disputes. In this article, we will analyse the inheritance process, order of inheritance and coping strategies from a legal perspective after the death of a spouse without a will, and help you understand how to protect your rights and interests through professional legal advice.

I. How is the estate distributed after the death of a spouse without a will?

Under V.I. law, ifDeath of a spouse without a willHis estate will be distributed in the following order (assuming no other legal heirs are competing):

1,Inheritance rights of spouses and children

  • Spouse only: The spouse inherits the entire estate.
  • Spouse and children: Spouse inherits the entire estate (some states, such as New South Wales, give the spouse priority to inherit all assets, Victoria is similar).
  • Illegitimate children or stepchildren: Proof of dependency on the deceased is required, otherwise the person may be excluded from the succession list.

2,Order of distribution in the absence of a spouse or children

  • Parents → siblings → grandparents/uncles/aunts → state.

3,Handling of special cases

  • live-in partner: The conditions of "continuous cohabitation for a period of two years" or "the existence of children" must be fulfilled in order to be considered a spouse in the legal sense of the term.
  • Minor children: The court will appoint a guardian and the estate will be administered in trust until the children reach adulthood, but the lack of a will may raise administration risks.

II. Five major risks of intestate succession

  1. Uncontrollability of the distribution of the estate
    State law may distribute assets to distant relatives or unwilling beneficiaries (such as unrelated siblings) or even to the government.
  2. Domestic Disputes and Emotional Harm
    Misunderstandings of distribution rules by relatives can easily lead to contests, such as disputes over inheritance status between stepchildren and children born out of wedlock.
  3. Complexity of legal procedures
    The court is required to appoint an estate administrator, a process that can take six months to a year, during which time assets are frozen and the financial strain on the family is exacerbated.
  4. high cost
    Estates are subject to higher legal fees, administrative fees, and potential litigation expenses in the case of intestacy.
  5. Custody risks for minor children
    Court-appointed guardians may not meet the expectations of the deceased and the administration of the estate lacks fiduciary protections.

III. Coping strategies: how to avoid intestacy risks

  1. Draw up a will immediately
    • legal effect: The will needs to be witnessed by two non-beneficiaries, specifying the distribution of assets, guardians and executors.
    • dynamic update (Internet): Events such as marriages, divorces, births of children, etc. require updating the will to avoid automatic invalidation.
  2. Establishment of trusts to protect children's interests
    • Secure the long-term interests of minor children by designating the use of funds (e.g., education, medical care) through a testamentary trust.
  3. Use of Family Provision Claim (FPC)
    Even if there is no will, a spouse, child or financially dependent person can still apply to the court for a reasonable share of the estate.
  4. Importance of professional legal support
    • Attorneys can assist with probate, tax planning and dispute resolution to minimise execution risk.

IV. Frequently Asked Questions on Intestate Succession in Melbourne

  1. Can a "de facto" partner inherit?
    Proof of cohabitation is required (e.g., joint bills, joint accounts), otherwise you may be excluded from the definition of spouse.
  2. How are estate debts handled?
    Debts are distributed in preference to inheritance, and the remaining assets are then distributed in the order of kinship.
  3. Does a prenuptial agreement (Prenup) affect inheritance?
    If the agreement contains an inheritance clause, it may take precedence over the intestate distribution rules, subject to court sanction.

The distribution of an estate where a spouse dies intestate is fraught with uncertainty, but family interests can be maximised through wills, trusts and legal advice. If you need legal support for intestate succession in Melbourne, or wish to create a personalised estate plan, pleaseContact Uss team of professionals to provide you with compliant and efficient solutions.

Forwarded article.

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