{"id":19053,"date":"2026-10-21T15:51:57","date_gmt":"2026-10-21T04:51:57","guid":{"rendered":"https:\/\/chuatan.com.au\/dying-without-a-will-australia-intestacy-rules-each-state\/"},"modified":"2026-10-21T15:51:57","modified_gmt":"2026-10-21T04:51:57","slug":"dying-without-a-will-australia-intestacy-rules-each-state","status":"publish","type":"post","link":"https:\/\/chuatan.com.au\/en\/dying-without-a-will-australia-intestacy-rules-each-state\/","title":{"rendered":"Dying Without a Will in Australia: Who Inherits in Each State and Territory"},"content":{"rendered":"
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When someone dies in Australia without a valid Will, their estate is distributed under the intestacy rules of the state or territory concerned, not according to what the family thinks they would have wanted. In every jurisdiction the surviving spouse or partner comes first, then children, then more distant relatives in a fixed order, and the State takes the estate only if no eligible relative can be found. What differs from state to state is how much the partner receives when there are children, and that difference can be worth hundreds of thousands of dollars.<\/p>\n\n

Which law applies?<\/h2>\n

Intestacy is governed by state and territory law, and there are eight different schemes. As a general rule, land (including an apartment or house) passes under the law of the place where it is situated, while money, shares and other movable assets pass under the law of the place where the deceased was domiciled, that is, where they had their permanent home. A Melbourne apartment owned by someone who lived in Sydney may therefore be governed by Victorian law, while their bank accounts follow NSW law.<\/p>\n

For a parent domiciled in Shanghai or Kuala Lumpur who owned an investment property in Brisbane, the property will usually pass under Queensland’s rules, while other assets may follow the law of their home country.<\/p>\n\n

The basic order of entitlement<\/h2>\n

Although the details vary, every jurisdiction follows broadly the same order:<\/p>\n

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  1. Spouse or partner<\/strong> \u2013 a husband or wife, or a qualifying de facto, domestic or registered partner.<\/li>\n
  2. Children<\/strong> \u2013 including adopted children and children born outside marriage. If a child has died before the deceased, that child’s own children usually take their parent’s share.<\/li>\n
  3. Parents.<\/strong><\/li>\n
  4. Brothers and sisters<\/strong> \u2013 with nieces and nephews taking the share of a sibling who has died.<\/li>\n
  5. Grandparents.<\/strong><\/li>\n
  6. Aunts and uncles<\/strong> \u2013 with first cousins taking the share of an aunt or uncle who has died.<\/li>\n
  7. The State or Territory<\/strong> \u2013 if no relative within these categories survives.<\/li>\n<\/ol>\n

    Each category takes only if no one in an earlier category survives. Most jurisdictions also require a relative to survive the deceased by 30 days to inherit.<\/p>\n\n

    Who counts as a partner?<\/h2>\n

    A legally married spouse qualifies, even if separated (subject to recent changes in South Australia, below). A de facto partner usually qualifies if the couple lived together as a couple on a genuine domestic basis for at least two years before the death, or (in most jurisdictions) had a child together, or registered their relationship. The exact tests differ: Victoria refers to a “domestic partner”, NSW and Queensland to a “spouse” that includes a de facto partner, the ACT to an “eligible partner”, and South Australia to a registered or court-declared domestic partner. We discuss these definitions in more detail in De Facto Partner Inheritance Australia: Who Counts as Family?<\/a><\/p>\n\n

    What the surviving partner receives<\/h2>\n

    Where there are no children<\/h3>\n

    In Victoria, NSW, Queensland, South Australia, Tasmania and the ACT, a surviving partner with no surviving children (or grandchildren) takes the whole estate. Western Australia and the Northern Territory are different: if the deceased also leaves parents, brothers or sisters, or nieces and nephews, the partner takes everything only up to a fixed amount, and shares the excess with those relatives.<\/p>\n\n

    Where there are children: the two models<\/h3>\n

    The “blended family” model (Victoria, NSW and Tasmania).<\/strong> If all of the deceased’s children are also children of the surviving partner, the partner takes the whole estate, on the basis that the partner will provide for the children. If at least one child is from another relationship, the partner receives:<\/p>\n