Opinion
If a person with a secret second family dies, who inherits their estate?
2nd Dec 2021
It’s a classic plot in movies and novels – a man dies, leaving his family to discover at the funeral that he had a secret second family. Both families turn up to mourn, not aware that the deceased man has another family.
It makes for great drama, but it also creates a legal quandary. Who should inherit the man’s estate?
This happens in real life more often than one would think.
Marriage celebrant hid secret second family in New Zealand
In 2014, in a matter heard in a Canberra court, it was found that a marriage celebrant and former priest had failed to divorce his first wife in New Zealand before marrying in Australia.
The former priest divorced his second wife to marry a third, but neither woman knew he was still married to his first wife. He received a 6-month suspended sentence for bigamy.
If a bigamist leaves the estate to one family, can the secret second family contest the will?
Bigamy – being married to more than one person at a time – is illegal in Australia. There is a penalty of up to 7 years in jail under s92 of the Crimes Act 1900 (NSW), and 5 years under s94 of the Marriage Act 1961 (Cth). A possible defence for bigamy is that you reasonably believed your former spouse was dead.
If a bigamist dies leaving their estate to just one family, the secret second family is entitled to claim against the estate, as a de facto and for any children of the relationship, under s57 of the NSW Succession Act 2006 (Succession Act).
How does the court decide who receives the deceased’s estate?
If there is no will, there is a provision in the Succession Act under Division 3 – Multiple Spouses. Under ss122–132, if there is one spouse with children, then normally the whole estate passes under intestacy law to that spouse.
However, where there are two surviving partners with no children, the estate will be split as agreed in writing between them.
If there are children in both families, the spouses will generally share the entirety of the estate and the children receive nothing.
But if there is no agreement, the court can decide how to distribute the estate, and can even give all of it to one spouse or their children.
What about being married and also having a de facto partner?
While bigamy is illegal in Australia, it is lawful to be married and have more than one de facto partner at the same time. Adultery is not a crime.
Australia abolished adultery as grounds for divorce when the federal Family Law Act was enacted in 1975.
It also established the principle of ‘no-fault’ divorce, where the only ground for divorce was the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.
This is an edited version of an article first published at Stacks Law.
Joshua Crowther is a lawyer in the Taree office of Stacks Law Firm and an accredited specialist in wills and estates by the Law Society of NSW. He joined Stacks in 2011 and is now the practice manager of a very busy wills and estates practice. He holds a Masters of Applied Law (Wills and Estates) from the College of Law in addition to his Bachelor of Laws (First Class Honours) and a Bachelor of Arts Communications (Honours). Josh deals with both simple and complex estate matters. He is well-versed in making complex applications to the Supreme Court regarding contentious wills (eg. when people have limited capacity to make a will) and has made dozens of applications to the Supreme Court for statutory wills. Josh handles family provision matters, acting for executors when defending wills, or acting for claimants against wills. He conducts mediations and hearings in Sydney on a regular basis.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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