A complete guide to spousal inheritance rights in Australia in 2026

Most of us assume our spouse or partner will automatically inherit everything when we pass away. It feels like it should be that simple, right?

But in reality, things are a bit more complicated. Australian law doesn't have a blanket rule that guarantees your partner gets it all. A spouse's inheritance rights actually depend on whether there’s a valid Will, which state you call home, and your family situation, like if you have kids from a previous relationship. It’s a mix of factors that can get confusing, fast.

In this guide, we’ll walk you through the key laws, what happens when there’s no Will (a situation called intestacy), how superannuation plays by its own rules, and why getting your estate plan sorted is the best thing you can do for the people you love.

What is the law on spousal inheritance rights in Australia?

When it comes to inheritance, there isn't one single rulebook for the whole country. Think of it more like a puzzle governed by a mix of state and federal laws.

Here are the key pieces of that puzzle that determine who gets what:

First, you have the deceased's Will. This is your most powerful tool, a legal document where you spell out exactly who inherits your assets. If there’s no valid Will, then the state-based intestacy rules take over. Each state has its own formula, like the Succession Act 2006 (NSW), that dictates how your assets are divided. Essentially, the government makes the decisions for you.

Then there’s Family Provision Legislation, which are state laws that let certain family members, like a spouse or child, challenge a Will if they feel they haven't been fairly provided for. And finally, there’s superannuation law. This is a big one that often catches people by surprise. Federal law, including the Superannuation Industry (Supervision) Act, governs your super death benefits, and it operates completely separately from your Will.

How these laws interact can lead to some unexpected outcomes. It’s a good reminder that organising your estate plan is one of the most important things you’ll ever do for your family.

Understanding intestacy and spousal inheritance rights in Australia

Dying without a valid Will has a specific legal name: "intestate." When this happens, you lose your say in how your assets are split up. Instead, the government steps in and divides everything according to a strict legal formula laid out in your state's laws, like the Succession Act 2006 (NSW).

These rules are meant to be fair, usually prioritising the surviving spouse and kids before looking at other relatives. But a one-size-fits-all formula rarely fits anyone’s unique situation.

Spouse's entitlement under intestacy

Here’s a general idea of how assets are divided, though the details can vary between states.

• Spouse with no children: This one is pretty straightforward. The surviving spouse usually gets the entire estate.
• Spouse with children from that relationship: In many states, including NSW and Victoria, the spouse is still entitled to the whole estate. The law basically assumes the spouse will provide for their children.
• Spouse with children from a previous relationship: This is where it gets messy and can lead to outcomes you never would have wanted. The surviving spouse is typically entitled to all personal belongings, a "statutory legacy" (a set amount of money), and a portion, usually half, of whatever is left. The deceased's children from the previous relationship then share the other half.

Here's a simple flowchart showing how the process generally works in a state like NSW:

Relying on intestacy means your personal wishes are replaced by a generic state formula. A platform like Willfully helps you work with an estate planning professional to create a comprehensive estate "capsule," making sure your legacy is managed with clarity, not left to chance.

Who inherits without a spouse?

If someone passes away without a spouse or children, the intestacy rules move down a strict family tree to find the next in line.

First, the estate would go to the deceased’s children. But if there are no kids, the law follows a clear pecking order. Based on NSW succession laws, the order of inheritance is:

1. Parents
2. Siblings
3. Grandparents
4. Aunts and uncles
5. Cousins

It’s worth noting that intestacy rules don't make room for step-children (unless they were legally adopted), close friends, or your favourite charities. If you want to leave something to any of them, you absolutely must state it in a Will.

And in the rare event that no eligible relatives can be found, the entire estate goes to the State. This situation is known as bona vacantia, which is Latin for "vacant goods."

Can a spouse challenge a will?

So, you have a valid Will. That means your wishes are set in stone, right? Well, mostly. If a valid Will exists, the starting point is that your estate will be distributed just as you’ve directed.

But a Will isn't completely bulletproof. An eligible person can challenge a Will by making what’s called a "family provision claim." This is legal-speak for someone feeling that the Will doesn't provide enough for their proper maintenance and future.

So, who counts as an "eligible person"? The list varies a little by state, but it almost always includes a current spouse or de facto partner, children, and sometimes former spouses or people who were financially dependent on you.

If someone makes a claim, the Supreme Court in that state will look at a whole range of things, like the claimant’s financial needs, their relationship with the deceased, and the size of the estate. If the court agrees that the person has been left without enough support, it can actually override the Will and re-distribute the assets. This is pretty common in blended families where, for instance, a new spouse might inherit most of the estate, leaving children from a previous marriage feeling overlooked.

A clear, well-thought-out Will can seriously lower the chances of a successful challenge. Working with a professional using a platform like Willfully helps you build a detailed estate road map that clearly explains your intentions, which helps minimise confusion and the risk of messy disputes later on.

How superannuation impacts spousal inheritance rights in Australia

Here’s one of the biggest mix-ups in estate planning: your superannuation and any life insurance held inside it do not automatically become part of your estate. This means they are not controlled by your Will.

Why is that? Legally, you don't "own" your super. It's held in a trust for you by the super fund's trustee. When you die, the trustee is in charge of paying out your super balance (the "death benefit") to your beneficiaries. They make this call based on superannuation law and the fund's own rules, not what your Will says.

This is a huge detail that can have a massive impact on who gets what is often one of your biggest assets.

The role of a Binding Death Benefit Nomination (BDBN)

So, how do you control where your super goes? With a Binding Death Benefit Nomination, or BDBN. This is a formal, written instruction you give to your super fund, telling the trustee exactly who should get your super and any life insurance payout.

If you have a valid BDBN, the trustee must follow your instructions and pay the benefit to the people you’ve nominated (as long as they are considered a 'dependant' under super law or your legal personal representative). It takes the guesswork out of it and gives you complete control.

Who is a 'dependant' for superannuation?

The word 'dependant' is really important here, because you can only nominate a dependant to receive your super directly. And just to keep things interesting, the Australian Taxation Office (ATO) has two different definitions of a dependant: one for who can get the payment, and another for who gets it tax-free.

If you don't have a valid BDBN, the super trustee will decide which of your dependants gets the money. If they can’t find any, the benefit might be paid to your estate, where it will then be distributed according to your Will, or the intestacy rules if you don't have a Will.

Navigating the complexities of inheritance law can be challenging. For a deeper dive into how assets are distributed and the specifics of succession acts, this video provides a helpful overview of the Australian system.

Take control of your estate by writing a will

As you can see, leaving things to chance with your estate is a pretty big gamble. Without a clear plan in place, your assets could be split up using a rigid government formula that doesn't reflect your wishes. You also open the door to family arguments and expensive legal fights, making an already tough time even harder for your loved ones.

The solution is straightforward: a clear, legally valid Will is the most important step you can take to protect your family and ensure your wishes are carried out.

Don't leave your legacy to chance. Modern estate planning is about more than just paperwork; it's about creating peace of mind for those you leave behind. Willfully offers a state-of-the-art platform for estate planning professionals to help their clients build a complete estate "capsule"—a digital road map that gives your family all the answers they'll need when the time comes. Ask your advisor about Willfully or visit our site to see how we are streamlining estate planning for Australians.