When a loved one passes, one of the most common assumptions is that their spouse will inherit everything. It feels like the natural order, but under the Australian law, this isn’t guaranteed.
What a spouse receives depends on a multitude of factors such as whether there is a valid Will, how the assets are owned, and which state the estate is held in. In many cases, what unfolds is often contrary to what the deceased would have intended, leading to confusion and disputes.
Are spouses automatically entitled to inheritance in Australia?
No, a spouse is not automatically entitled to inherit everything when their partner dies.
Whether you’re legally married or in a de facto relationship, your entitlement depends on the structure of your partner’s estate, the wording of the Will (if there is one), and the applicable laws in your state or territory. In Western Australia, the rules are set out in the Administration Act 1903 (WA) and the Family Provision Act 1972 (WA).
In a nutshell, the reality is this: just because you’re a spouse doesn’t mean you’re guaranteed a full inheritance.
What happens if there is no Will?
When someone dies without a Will, they are said to have died intestate. In Western Australia, a statutory formula is applied under the Administration Act 1903 (WA) to decide how the estate is to be divided.
If there are children, the spouse receives a statutory legacy (currently $546,000), the household chattels, and one-third of the remaining estate. The children receive the balance in equal shares.
If there are no children but other relatives, like parents or siblings, the split may still be shared.
These outcomes often come as a shock and can lead to costly, stressful disputes, especially in blended families or where the Will has not been updated for years. We’ve broken down the details in a dedicated article: What happens if you die without a Will in Australia?
What happens if there is a Will?
If there is a valid Will in place, the estate is generally distributed according to the instructions left by the deceased person. A spouse is only entitled to what the Will gives them, which may be everything, something, or in some cases, nothing at all.
Even a Will isn’t immune from dispute. If a spouse believes they’ve been unfairly left out or not properly provided for, they may be able to challenge the Will under the Family Provision Act 1972 (WA). The court can override the Will and redistribute the estate if it finds that the provision for the spouse (or another eligible person) is inadequate.
Surprisingly, this is not rare. Our 2025 Inheritance State of Play in WA Report found that 74% of estate challenges succeed — and when it’s a spouse or former partner bringing the claim, that number climbs to 83%. A Will might be legally valid, but that doesn’t mean it won’t be contested or changed.
The bottom line? A Will isn’t always the final word.
What happens in property settlements after separation or divorce?
Spouses often ask whether an inheritance is “safe” during a relationship breakdown. The answer, as lawyers often say, is that “it depends”.
When a relationship ends, any inheritance received before, during or even after the relationship can come under scrutiny in a property settlement. This falls under the Family Law Act 1975 (Cth), which gives the court wide discretion to divide property in a way that is just and equitable.
An inheritance isn’t automatically protected. If it’s been used to benefit both parties, such as paying off a mortgage or buying a joint asset, it may be treated as part of the shared asset pool. Even if it hasn’t been touched or shared, the court may still take it into account when dividing assets, especially in circumstances where the other party may have contributed indirectly.
The timing of the inheritance, the intention of the deceased, and whether the other party contributed to the asset can all influence how inheritance is treated in the family law proceedings.
Everything you need to know during what can be a tough time for your family.
Practical steps on how to protect an inheritance
Estate planning is not only for the ultra-wealthy. Whether you are receiving an inheritance or leaving one behind, there are some smart ways to protect it:
- Don’t mix it in: Keep inherited money or assets separate from joint accounts, mortgages or shared investments. Once it’s pooled, it’s harder to argue it was yours alone
- Use a separate bank account: Holding funds in your own name helps establish that the inheritance was intended just for you.
- Consider a Binding Financial Agreement (BFA): These agreements can set out exactly what happens to assets if a relationship ends, including inheritances.
- Set up a Testamentary Trust in your Will: A Will with a Testamentary Trust can protect your legacy and keep it out of the hands of unintended beneficiaries. This is particularly helpful in blended families or for beneficiaries in high-risk situations, such as divorce, addition or financial instability.
- Make sure your Super goes where you want it: Superannuation doesn’t automatically form part of your estate. Make a Binding Death Benefit Nomination to ensure that it goes to the right person.
- Revisit your Will regularly: If you’ve recently gone through a significant life change, such as a divorce, remarriage or a new child, we recommend checking if the estate plan still holds. If it is out of date, it might not do what you think it does.
Protect what matters most
Every family setup is different, and estate planning is never one-size-fits-all. It is rarely as straightforward as “the spouse gets everything”. These steps only work when they’re done properly — with the right legal advice, and with a clear understanding of how the law actually applies to your situation.
Whether you are planning your estate or trying to understand your rights as a spouse or partner, the best time to get informed advice is now. That’s where we come in. Helping people future-proof what matters most is exactly what we do.
We help people across Perth navigate these issues every day. If you need clear, practical advice, our estate planning lawyers in Perth are here to help.
Dealing with an inheritance dispute, estate administration or probate matter?
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