Wills for unmarried couples and de facto partners

Unmarried couples need wills more than married couples, not less. Intestacy rules treat de facto partners as entitled but with specific conditions – and without a will, the partner may receive less (or nothing) than expected.

Intestacy and de facto partners

In South Australia, a de facto partner qualifies under intestacy rules if:

• The relationship has been continuous for at least 3 years, or
• There's a child of the relationship, or
• The relationship is registered under the Relationships Register Act 2016 (SA)

If none of these apply, the de facto partner isn't recognised under intestacy and inherits nothing unless they can claim under family provision law.

Why a will is essential

Certainty

A will makes the partner's inheritance explicit. No need to prove the length of the relationship or meet other criteria. The will just says who inherits.

Full inheritance

Under intestacy, even a qualifying de facto partner may only receive a portion of the estate if there are children from a previous relationship. A will can give the partner everything, or any specific share you prefer.

Executor appointment

De facto partners aren't automatically the executor. Without a will, the partner may need to apply to the court alongside other potential administrators.

Guardianship of children

If you have children from a previous relationship, guardianship after death is a significant question. The will can document your preferences.

Separated but not divorced

A common trap: people who are separated but not divorced still have their former spouse as their legal spouse for intestacy purposes. A new will removes this risk.

Joint tenancy

If you own property as joint tenants, the property passes to the surviving partner automatically – regardless of marriage status. This is a common way unmarried couples handle the primary home. But it only addresses that property.

Super and life insurance

Superannuation nominations work similarly for de facto partners as for spouses – but there are specific rules about who qualifies as a ‘dependent’. Binding nominations to a partner are important to get right.

Children from previous relationships

Children from a prior relationship often cause estate planning complexity for unmarried couples. A properly drafted will can include rights of residence, testamentary trusts, or specific provisions to balance competing interests.

Summary

Unmarried couples often have more to gain from a will than married couples. Clarity about inheritance, partner-focused executor appointments, and careful asset structuring are all important – particularly where children from prior relationships are involved.

Talk to Sam about your situation

If this article raised questions for your own circumstances, Sam Michele offers free 20-minute initial consultations. Learn more about our wills service, or book a consultation.

Related reading

• Wills for blended families in Adelaide
• What happens if you die without a will in SA?
• Wills – our approach