Legal rights following the death of a partner

Inadequate provision in the will

A partner, as defined under the Family Relationships Act 1975, who has not been adequately provided for under the deceased partner's will may apply under the Inheritance (Family Provision) Act 1972 , for a sum of money from the deceased's estate [s.6(a)]. Before this claim can be made, the partner must first have obtained a declaration from the court that he or she was a 'domestic partner' on the date of death.

Where there is no will

If the deceased did not leave a will, a surviving partner, as defined under the Family Relationships Act 1975, is entitled, under the intestacy provisions of the Administration and Probate Act 1919 [s.72h(1)], to share in the distribution of the estate. Before this claim can be made, the partner must first have obtained a declaration from the court that he or she was a 'domestic partner' on the date of death.

Superannuation (Commonwealth)

Most superannuation comes under commonwealth law. Same-sex partners have the right to receive superannuation payouts as death benefits if:

the surviving partner was financially dependent on the other partner at the time of their death OR if
the surviving partner has been nominated as the preferred beneficiary and the nomination is binding OR if
the surviving partner inherits through the other partner's will OR if
they are in an 'interdependency relationship' and the fund's rules allow payment of death benefits to an interdependent (Commonwealth public sector schemes do not provide for this). An interdependency relationship includes a close personal relationship between two people who live together, where one or both provides for the financial and domestic support or personal care of the other. The requirement to live together does not need to apply if one or both parties has a physical, intellectual or psychiatric disability.

Superannuation (State)

Superannuation schemes for South Australian state employees give same-sex partners access to death benefits, if the partners have been together for at least three years, or periods totalling three years out of the last four.

Workplace death

If an employee is killed at work and their partner, as defined under the Workers Rehabilitation and Compensation Act 1986 s3(1), was wholly or partially dependent on the employee, then the partner can make a claim under the Workers Rehabilitation and Compensation Act 1986 [s44(1)].

Death caused by a negligent act

If the death was caused by the negligent act of a third party (for example, in a road accident), the surviving partner, as defined under the Family Relationships Act 1975, may claim damages from the third party. These damages will cover both economic loss (that is, loss of future financial support) and solatium(emotional loss). Before this claim can be made, the partner must first have obtained a declaration from the court that he or she was a 'domestic partner' on the date of death.

Death caused by crime

Under the Victims of Crime Act 2001 (SA) a partner, as defined under the Family Relationships Act 1975, is able to claim compensation for the death of their partner resulting from a homicide. If a partner died as the result of a criminal injury the surviving partner has a right to be represented as a dependant of the deceased in order to collect compensation.