Passing away without a will. What does this mean for your spouse?

Every year, many individuals have passed away without a Will i.e. “Interstate” – a legal term where an individual who has passed away without a Will.

On intestacy, a ‘spouse’ is entitled to the personal effects of the deceased, a statutory legacy and one-half remainder (if any) of the estate: Succession Act 2006 (NSW) s 113. The deceased’s children share equally in the remaining half of the residual of the estate.

To be considered as a ‘spouse’, you must fall under the definition of ‘spouse’ in s 104 of the Succession Act 2006 (NSW).

A statutory legacy consists of the CPI adjusted legacy. The CPI adjusted legacy is to be determined by the following formula:

Consumer Price Index number for the last quarter

CPI adjusted legacy =        __________________________________________                x $350,000

Consumer Price Index number for the December 2005 quarter



If the estate is not sufficient, then the statutory legacy will abate to what is the remainder from the estate.

The spouse’s statutory legacy makes it clear that the spouse has priority in the intestacy laws.


If the superannuation falls within the statutory legacy it may not be available for of distribution. It depends on the terms of the superannuation fund and what instructions the deceased may have provided. The super fund’s trustee may be able to shed some light on this.

There is no guarantee that making an application to the superannuation fund will result in you receiving a share of the deceased superannuation. The trustee of a super fund generally has discretion as to distribution in the absence of a nomination by the deceased. However, by making an application to the superannuation fund you place yourself in a better position to receive a share if one is forthcoming.


If you have any questions or require any information in relation to the above, please feel free to give Nas (Nasir) Hanafi from Lion Legal a call on (02) 9251 2722.