With divorce and separation common and resulting in second and even third marriages, many people find themselves part of blended families. Blended families include a couple as well as children from both current and previous relationships. In this situation, people will often provide for their partner or their own children in a Will, but not necessarily their spouse’s children from previous marriages or relationships (their step-child).
In the event that someone dies without a Will, their estate is to be distributed in accordance with the intestacy laws. This means that the estate will be provided to the deceased’s spouse or, in the event that the deceased had children from a previous marriage or relationship, the estate is to be divided between the spouse and the deceased’s children. Step-children are unlikely to be provided for in this division, as they are not related to the deceased.
What happens if a step-parent dies and you find yourself not adequately provided for?
In NSW, a claim against an estate is made by lodging a family provision application. In order to make a family provision application against an estate, a claimant must be considered an eligible person. The law does not specifically identify that step-children are directly eligible to make an application, however, a step-child may be eligible if they can prove that they were dependant on the deceased and a member of the deceased’s household at some point in time.
The step-child must also establish additional factors warranting an application being made. These factors can include but are not limited to:
- the nature of the deceased’s relationship with the step-child
- the step-child’s financial needs
- any contribution made by the step-child to the deceased’s estate and
- any contribution made by the deceased over the step-child’s lifetime
Stepchildren must also keep in mind that being found eligible to make an application does not guarantee any provision or claim against an estate. This can only be established subsequently once an application has been made. For more information on family provision claims and the process of contesting an estate or will, read our comprehensive information sheet Family Provision Claims.
Any family provision application must be filed with the Supreme Court of New South Wales within 12 months from the date of the deceased’s death.
If you think that you have not been adequately provided for and want to inquire about contesting a will contact our Wills and Estate team including Monique Smiles and Larissa Howard to discuss your legal rights on 4929 3995.