PA LAW · ARTICLES · WILLS & DECEASED ESTATES
By Manal Amro, Principal Solicitor, PA Law Pty Ltd
Updated: · South Australia
This guide expands on PA Law’s video about a spouse’s inheritance when there is no will. It explains nine connected issues, from the family home and blended families to superannuation and who can administer the estate.
Scope: This is a general guide to South Australian rules, using the $120,000 preferential legacy introduced on 1 January 2025. The law at the date of death matters. Overseas assets, interstate connections, disputed relationships and court orders can require a different analysis.
1. Dying without a will in South Australia: what does a spouse inherit?
The following summary assumes one eligible surviving spouse or domestic partner, with no competing partner or court order changing the result. “Children” can include descendants inheriting through a child who died earlier. [1]
| Family situation | Usual distribution |
|---|---|
| Spouse or partner, no children or descendants entitled through them | The spouse or partner receives the whole intestate estate. |
| Spouse or partner and children; calculation value is $120,000 or less | The spouse or partner receives the whole intestate estate. |
| Spouse or partner and children; calculation value exceeds $120,000 | The spouse or partner receives $120,000 plus half the balance. The children’s side receives the other half. |
| Children, no eligible spouse or partner | The estate passes to the children, applying the statutory rules for any deceased child’s descendants. |
Personal goods are dealt with separately: a surviving spouse or domestic partner is generally entitled to the deceased’s personal goods. The estate calculation below explains why you should not simply apply the formula to the total value of everything the family owns.
2. What counts towards the estate value?
Under section 112 of the Succession Act 2023 (SA), the calculation deducts the deceased’s debts and liabilities, funeral and testamentary expenses, and administration costs payable from the estate. Where there is a surviving spouse or domestic partner, personal goods are also deducted. Their statutory definition includes household and personal items and motor vehicles, but excludes goods used for business. [2]
A worked example: a $620,000 calculation base
Illustrative example: Jordan dies without a will, leaving one eligible spouse and two surviving adult children. Assume the estate available for the statutory calculation is $620,000 after the relevant deductions and excluding personal goods. There are no competing claims or other complications.
- Spouse’s preferential legacy: $120,000.
- Balance: $620,000 − $120,000 = $500,000.
- Spouse’s half of that balance: $250,000.
- Spouse’s total from the calculation: $370,000, plus the personal goods separately.
- Children’s combined share: $250,000, or $125,000 each.
These are entitlements by value. If much of the estate is a house, there may not be enough cash to distribute those amounts immediately. Valuation, finance, sale or transfer arrangements may need attention.
3. What about domestic partners, separation and divorce?
Does an unmarried partner qualify?
A domestic partner can inherit, but the legal definition must be satisfied. A registered relationship or a court declaration under South Australian legislation may establish that status. Relationship duration, shared living arrangements and other evidence can matter. Do not assume the same test applies to intestacy, superannuation and every other legal issue. [3]
What if you separated but did not divorce?
Separation alone does not necessarily remove a person’s status as a spouse. If there is both a legal spouse and a qualifying domestic partner, special division rules and possible court orders may apply. Bring divorce documents, financial agreements and property orders to your solicitor so their legal effect can be checked. Do not assume that a property settlement has answered every inheritance question. [3]
Planning question: Does your current estate plan reflect the relationships you have now, including any former relationship that has not been legally finalised?
4. How are children and blended families affected?
The deceased’s children can include children from earlier relationships and adopted children. Being an adult or financially independent does not itself exclude a child from the intestacy rules. If a child died earlier, descendants may inherit through that branch. A stepchild who was not adopted does not automatically receive a child’s intestacy share merely because they were treated as family. [3]
A stepchild may have a separate family provision claim if the statutory eligibility requirements are met. That is different from an automatic intestacy entitlement. [7]
For a blended family, write down the people you want to provide for, rather than assuming “my family” identifies them precisely. Discuss support for your partner, children from each relationship, stepchildren and anyone with additional care needs. A minor child’s inheritance also needs appropriate administration; it is not the surviving parent’s personal money to use freely.
5. Can the surviving partner keep the family home?
Check the title first. Property held as joint tenants generally passes to the surviving joint owner by survivorship. A share held as a tenant in common generally forms part of the deceased’s estate. A home owned solely by the deceased also requires estate administration. “We own it together” is not enough information to determine the outcome. [4]
Where an estate includes an interest in the home occupied by the surviving spouse or domestic partner, a statutory election to acquire that interest may be available. The election generally has a three-month deadline linked to the grant or the administrator’s notice, depending on who administers the estate. The property’s value may exceed the partner’s inheritance, requiring a payment to the estate. Conditions, valuation and extensions need advice. [2]
If you are planning ahead, discuss how to fund your partner’s housing needs while providing for children. PA Law’s right to reside in a will guide explains questions to consider when balancing those aims.
6. Does intestacy control superannuation and all joint assets?
No. Start with an asset map. Record each asset, its legal owner and the documents governing what happens on death.
- Superannuation: it does not automatically form part of the estate. Fund rules and valid death benefit nominations matter. A benefit paid to the estate is dealt with as an estate asset; a benefit paid directly to an eligible person follows the superannuation process. [5]
- Joint property: distinguish joint tenancy from tenancy in common before calculating the estate. [4]
- Joint bank accounts: check account terms, ownership and the source of funds. Access to an account does not necessarily resolve every question about who beneficially owns the money. See our joint bank accounts and wills guide.
- Companies and trusts: identify what the deceased personally owned, such as shares or a loan receivable, and obtain advice about the relevant company or trust documents. An asset used by the family may legally belong to a different entity.
Review your will alongside your superannuation and death benefit nominations. Having one document in place does not settle every asset’s destination.
7. Who administers an estate when there is no will?
Where a grant is required, an eligible person applies to the Supreme Court for letters of administration. The grant authorises the administrator to collect and deal with estate assets and pay estate debts. An administrator must apply the legal distribution rules; they cannot choose beneficiaries simply because they control the paperwork. [6]
Not every estate needs a formal grant. The assets, their ownership and the requirements of the organisations holding them must be checked. The Public Trustee explains that some estates with minimal assets or predominantly joint assets may be handled without formal administration. It does not automatically become administrator merely because there is no will. [8]
Before anyone distributes money, identify debts, costs, beneficiaries and possible claims. If you have been using a power of attorney, remember that the attorney’s authority ends at death. Ask what authority is now needed.
8. Can someone challenge an intestacy distribution?
Yes. Eligible people may seek a family provision order if the intestacy outcome does not provide adequately for them under the statutory test. A claim is not automatically successful, and eligibility differs between categories of family members. The usual application period is six months from the grant of probate or administration, so obtain advice promptly. [7]
Other disputes can concern whether a will exists, whether a relationship qualifies, asset ownership or the identity of beneficiaries. Keep these questions separate: proving an entitlement and asking the Court for additional provision are different issues.
Do not distribute an estate on an informal assumption that everyone agrees. Get advice before changing proposed shares, particularly where children, people without legal capacity or disputed entitlements are involved.
9. What should you do next?
If you are planning your own estate
- List your people: identify your partner, all children, stepchildren, dependants and other intended beneficiaries.
- List your assets and debts: include ownership details, loans, superannuation and relevant business interests.
- State your priorities: consider housing, immediate cash needs, education, care and how inheritances should be managed.
- Prepare a suitable will: discuss an executor, backup appointments, the residue of your estate and what should happen if a beneficiary dies first.
- Coordinate and review: check nominations and ownership arrangements after marriage, separation, births, deaths or significant asset changes.
If someone has already died
Locate any will or testamentary document before treating the estate as intestate. Gather the death certificate, family details, titles, statements, debts and relevant relationship documents. Preserve records and ask who can lawfully act before withdrawing or distributing estate money.
Our missing estate assets checklist can help organise your enquiries. PA Law provides estate administration assistance and will preparation for clients in Gawler, Adelaide and across South Australia.
Dying without a will in South Australia: FAQs
Does my spouse automatically get everything if I die without a will in South Australia?
No. A sole qualifying spouse or domestic partner generally receives the whole intestate estate if there are no surviving children or descendants entitled through them. Where there are children, the estate value and statutory distribution rules matter. Personal goods and assets passing outside the estate also need separate consideration.
Is the South Australian intestacy amount $100,000 or $120,000?
The preferential legacy increased to $120,000 from 1 January 2025. This guide uses that amount. For an actual estate, check the amount and law applying at the date of death rather than relying on an older article or video.
What if a child died before their parent?
Descendants of a deceased child may inherit through that child’s branch of the family. Identify all children and descendants, including dates of death, before calculating shares.
Does the 30-day survival rule matter?
Generally, a person must survive the deceased by at least 30 days to inherit under South Australia’s intestacy rules. There are statutory qualifications, including an exception where applying the rule would send the estate to the Crown.
Can intestacy apply even if there is a will?
Yes. If a valid will fails to dispose of part of the estate, that undisposed part can be distributed under intestacy rules. This is called partial intestacy.
Does the government automatically take an estate if there is no will?
No. The law first provides for eligible family members in a statutory order. The Crown becomes entitled only if there is no person entitled under those rules; statutory waiver provisions can also be relevant.
Can I act under the deceased’s power of attorney?
No. A power of attorney ends at death. Authority to administer the estate must be considered separately, including whether a grant of letters of administration is needed.
Watch: does your spouse inherit everything?
Watch on YouTube · Read the video guide and full transcript
Discuss your will or an intestate estate with PA Law
PA Law is based in Evanston South and assists clients in Gawler, Adelaide and across South Australia. Tell us whether you are planning ahead or dealing with a death, and mention any urgent deadline or disagreement.
Arrange an appointment with PA Law · 0431 614 696 · manal@palaw.au
Sources and further reading
- Legal Services Commission of South Australia, What if I die without a will?
- Succession Act 2023 (SA), particularly Part 5, sections 101–113.
- Legal Services Commission, Distribution of an intestate estate.
- Legal Services Commission, Common forms of land ownership.
- ASIC Moneysmart, Who gets your super if you die.
- Courts Administration Authority of South Australia, Probate and grants of administration.
- Legal Services Commission, Who can contest my will? — including intestacy family provision claims.
- Public Trustee SA, When there is no will.
General information only, not legal advice. This article cannot determine an individual beneficiary’s entitlement. The applicable law, date of death, relationships, documents and asset ownership need to be checked for the particular estate.