Partnering up late in life? Don’t forget to protect yourself
Elderly widowed men and women are increasingly forming a bond with a companion for company in the later years of their lives.
Like most developed countries, Australia is an ageing nation, with people aged over 65 now outnumbering those aged under 15 years. Basically, we are living longer than ever.
As the Australian population continues to age, new patterns begin to emerge in all areas of life, and death. This is particularly true when it comes to relationships.
According to leading estate planning lawyer Kimi Shah, elderly widowed men and women are increasingly forming a bond with a companion for company in the later years of their lives.
“While companionship is incredibly valuable, especially for seniors, there can be repercussions for your estate planning as the status of the relationship is often murky,” said Shah, a partner at Melbourne law firm Kalus Kenny Intelex.
“In our practice, we have seen a significant increase in claims against a deceased estate by a companion who alleges that they were the domestic partner of the deceased at the time of their death. And we are also seeing more and more children who are forced to deal with the conflict between a parent’s happiness and their potential inheritance.”
In Victoria, there are certain “eligible persons” who can make a claim against a deceased estate. This includes an “unregistered domestic partner” of the deceased.
“As people age, their spouse may pass on earlier than expected. If there are children of the marriage, they are likely to have moved out and established their own families by that stage.
“The widow or widower may then form a new relationship or companionship without the intention of entering into a ‘domestic partnership’ per se, but this may elevate that person to some legal privileges akin to a spouse,” Shah explained.
So, exactly what is an “unregistered domestic partnership”? According to the law in Victoria, it is recognised by considering a number of factors:
- Was the person living with the deceased continuously for a period of at least two years immediately before the person’s death?
- Was the person a parent of a child of the deceased, that child being under 18 years of age at the time of the deceased’s death?
- What was the degree of mutual commitment to a shared life?
- What was the nature and extent of common residence?
- Was there a sexual relationship?
- Was there a financial dependence or interdependence or any arrangements for financial support between the parties?
- Did the parties own, use or acquire property together?
“The status of a relationship can be a difficult matter to prove or dispute after a person passes away,” said Shah.
“If you pass away leaving behind a companion who can touch on any of the above factors, they may be able to overstate the nature of the relationship and claim the status of an ‘unregistered domestic partner’.
“This means, if you haven’t made a gift under your Will for this person or if your gift is not regarded as adequate, the companion may argue:
- that he/she was your unregistered domestic partner;
- that you had a moral duty to provide for their proper maintenance and support; or
- that your Will fails to make adequate provision for their proper maintenance and support.
“If the person is able to satisfy these elements, the Court may make an order that the person is entitled to a portion of your estate. This may take the form of a lump sum amount, or other interests such as a life interest over your property,” Shah continued.
With a growing number of disputes, it is important for seniors and their children to seek professional advice to protect themselves against these types of claims.
For more information on Kalus Kenny Intelex Lawyers, visit kkilawyers.com.au