Relationships

Why de facto couples need a will

Living together isn't the same as being married — at least not when it comes to your estate.

⚡ The Short Answer
De facto partners may have rights under intestacy law, but proving the relationship after death can be expensive and stressful. A will removes all doubt and protects your partner.

De facto isn’t automatic

Many couples assume that living together for years gives them the same rights as married couples. While Australian law does recognise de facto relationships, it’s not as simple as it sounds.

🇦🇺 In Australia: To be legally recognised as de facto, you generally need to have lived together for at least 2 years, OR have a child together, OR have made significant financial contributions to the relationship. But proving this after death? That's where it gets complicated.

The burden of proof problem

When you’re married, there’s a certificate. When you’re de facto, there’s… what exactly?

If you die without a will, your partner may need to prove the relationship existed by providing:

  • Evidence of living together (leases, bills, mail)
  • Financial records showing shared expenses
  • Statements from friends and family
  • Proof of how long you’ve been together

This takes time, costs money, and happens while they’re grieving.

What intestacy means for de facto couples

If you die without a will, your de facto partner may be entitled to your estate under intestacy rules — but:

  • They have to prove the relationship first
  • Other family members may contest their claim
  • The process can take months or years
  • Legal fees can eat into the estate

A will eliminates all of this.

The family home question

If you own property together, how it’s held matters:

  • Joint tenants — Property passes automatically to the surviving owner (no will needed for this asset)
  • Tenants in common — Your share forms part of your estate and goes according to your will (or intestacy rules)

Many de facto couples aren’t sure which arrangement they have. Check your title documents.

Super needs extra attention

Superannuation funds can pay death benefits to a spouse, de facto partner, or dependants. But:

  • You need a valid binding death benefit nomination naming your partner
  • Without one, the trustee decides
  • Trustees may require evidence of the de facto relationship
  • This delays payment when your partner needs it most

Children add complexity

If you have children together:

  • They’re automatically recognised as your dependants
  • But without a will, who becomes their guardian if both parents die?
  • And who manages any inheritance until they’re adults?

If you have children from previous relationships:

  • How do you balance their needs with your current partner’s?
  • Do you want your partner to have full control of assets?
  • What happens to the family home?

What makes a good de facto will

Your will should:

  1. Clearly identify your partner — Full name, address, and the nature of your relationship
  2. State your wishes explicitly — Don’t rely on assumptions
  3. Address the family home — Who gets it, or does it need to be sold?
  4. Consider all children — From current and any previous relationships
  5. Appoint guardians — If you have minor children
  6. Align with your super nomination — Make sure they match

💡 Pro tip: Both partners should make wills at the same time. This ensures your wishes are coordinated and nothing falls through the cracks.

What to do now

  1. Confirm how your property is held (joint tenants vs tenants in common)
  2. Check your super binding nominations
  3. Use our Preparation Checklist to gather information
  4. Make matching wills that clearly identify each other as partners
  5. Keep copies somewhere your partner can find them

Related: What happens if I die without a will? · Choosing the Right Type of Will