When someone dies, the first question is often simple: who is family? For many Asian and cross-border families the answer is not simple at all. A couple may have lived together for years without marrying. A marriage may have been celebrated in a village in Fujian, registered in Malaysia, or never registered at all. A parent may have children from an earlier relationship overseas, step-children here, or a child that the rest of the family has never met.
Australian law answers the question differently depending on whether there is a Will, whether someone is claiming under the intestacy rules (where there is no valid Will), or whether someone is making a family provision claim against the estate. This article explains the main categories in general terms.
Spouses and de facto (domestic) partners
Every state and territory recognises de facto partners for inheritance purposes, but each uses its own definition and terminology.
Victoria
For intestacy, a “domestic partner” generally includes a registered domestic partner, or a person who lived with the deceased as a couple on a genuine domestic basis for a continuous period of at least two years immediately before the death, or who had a child under 18 with the deceased. Courts look at factors such as the length of the relationship, shared residence, financial interdependence, care of children and how the couple presented themselves to others.
New South Wales
For intestacy, a domestic partner includes a person in a registered relationship, or a de facto relationship that lasted at least two years or produced a child.
Other states
Queensland, Western Australia, South Australia, Tasmania and the territories each have their own definitions and minimum periods, and some differ between intestacy and family provision claims. Always check the law of the state that applies to the estate.
A relationship that does not meet the intestacy definition may still give rise to a family provision claim in some circumstances, for example as a member of the deceased’s household or a person who was dependent on them.
Marriages celebrated overseas
A marriage validly entered into overseas is generally recognised in Australia if it was valid where it took place and it is not of a kind Australian law refuses to recognise, such as a marriage where one party was under age or the parties were too closely related. Evidence matters. Families should keep:
- the marriage certificate, and if needed a certified translation;
- the registration record, such as a Chinese marriage certificate or Malaysian registration;
- evidence of a customary or religious ceremony, if the marriage was never registered.
An unregistered customary marriage can raise difficult questions. Even if it is not recognised as a marriage, the surviving partner may still qualify as a de facto partner.
Polygamous marriages
A polygamous marriage cannot be validly entered into in Australia. Some older generations in Asia, however, had more than one wife under customary law or under laws that allowed it at the time. Australian law may recognise such marriages for certain purposes, and the intestacy rules in several states, including New South Wales and Victoria, contain provisions for an intestate who leaves more than one spouse or partner. How the estate is shared will depend on the facts and the state concerned. These cases often turn on detailed evidence about the marriages and are best handled carefully and early.
Children: biological, adopted and step-children
Adopted children
A child legally adopted is treated as the child of the adoptive parents for inheritance, and generally no longer as the child of the birth parents. An overseas adoption may need to be recognised in Australia. Informal “adoptions”, where a child was raised by relatives without a legal adoption, are common in some Asian families. They usually do not create inheritance rights on intestacy, but they may be relevant to a family provision claim.
Step-children
Step-children generally do not inherit under the intestacy rules. However, in Victoria and several other states a step-child can be an eligible person to make a family provision claim. In Victoria, eligible persons include step-children, with different conditions depending on age, study and disability. The court will consider factors such as the relationship and whether the deceased had a moral duty to provide for them.
Children born outside marriage
Every Australian state gives children born outside marriage the same status as children born within a marriage. A child born to an unmarried couple, or from a relationship overseas, has the same inheritance rights as any other child, provided parentage is established.
Children born overseas
Where the child was born and lives makes no difference. A child in Shenzhen or Jakarta has the same rights as a child in Melbourne, but the executor needs to know about them, and evidence such as a birth certificate naming the deceased is usually required.
DNA and proof of parentage
When parentage is disputed, or the deceased is not named on a birth certificate, a court can consider other evidence, including DNA testing. Testing may involve the deceased’s stored samples or siblings and other relatives. Courts can make orders for parentage testing in some circumstances. These matters are sensitive and should be approached with care, both legally and within the family.
Practical checklist for executors and families
- List every possible spouse, partner and child, including those overseas.
- Gather marriage, divorce, birth and adoption certificates, with translations.
- For a de facto relationship, collect evidence of shared living, finances and how long the relationship lasted.
- Check which state’s law applies to the estate.
- Do not distribute the estate until all possible claimants are identified and time limits for claims have passed.
- If you are making a Will, name family members clearly and explain any intended exclusions.
Frequently asked questions
Does a de facto partner inherit in Australia if there is no Will?
Generally yes, if they meet the definition of a de facto or domestic partner in the relevant state. In Victoria and New South Wales, this usually means a registered relationship, at least two years living together as a couple, or a child together.
Are stepchildren entitled to inheritance?
Not automatically. Step-children usually do not inherit under the intestacy rules, but in Victoria and several other states they can apply to the court for family provision if they were not adequately provided for.
Is a marriage from China or Malaysia recognised in Australia for inheritance?
Generally yes, if it was valid where it took place. Keep the marriage certificate and a certified translation, as the executor or court may need them.
Can a child born outside marriage inherit?
Yes. Australian law gives children born outside marriage the same rights as other children, provided parentage can be proved.
How Chua Tan Associates can help
We assist families across Australia and overseas with questions of who is entitled to an estate: proving overseas marriages, de facto relationships and parentage, advising executors, and preparing or responding to family provision claims. Our principal is a Nationally Accredited Mediator, which can help resolve sensitive family disputes without litigation. We work with local lawyers to obtain overseas records and advise in English, Mandarin and Cantonese.
Related reading
Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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