An eligible applicant must make a claim within 9 months from the date of death of the deceased. However, the Executor or Administrator is able to distribute the estate after 6 months of the deceased’s death, if they have not been notified by the applicant of a potential family provision claim.
Under section 41(1) of the Succession Act 1981, the following people are classified as eligible applicants for a family provision claim:
Spouse: a husband, wife or defacto partner (including same sex partners) of the deceased at the time of death. Also includes a former spouse or former defacto partner of the deceased who was dependant.
Defacto Partner: one of two persons who are living together as a couple on a genuine domestic basis, irrespective of gender for a continuous period of at least 2 years ending on the deceased’s death. They must not be married to each other. A number of factors are considered to determine a “genuine domestic basis”.
A Dependant Former Spouse or Defacto Partner: former husband or wife who was divorced from the deceased; not remarried; and at the time of death was either receiving or entitled to receive maintenance from the deceased. A former defacto partner may be eligible if they are dependant, that is, they are the parent of a minor child of the deceased who was entirely or substantially maintained by the deceased as at the date of death.
Child: a minor or adult child of the deceased including a foetus as at the date of death provided such a child is born and remains alive for 30 days. Also includes a stepchild and adopted child.
Stepchild: a child of the spouse of a deceased including a defacto spouse. Under the Act, only divorce terminates the relationship of stepchild and step-parent. Therefore if this occurs, a stepchild is not eligible in that instance.
Parent: the parent of a deceased may be eligible if they were dependant on the deceased for maintenance or support as at the date of death.
Dependant: any person who was wholly or substantially maintained by the deceased at the time of death and being either; a parent of the deceased; the parent of a minor child of the deceased; or a minor.