If the deceased has a spouse or domestic partner and no children at the date of their death, the whole of their estate passes to the spouse or domestic partner [Succession Act 2023 (SA) s 105(1)(a)].

Who is a domestic partner?

A domestic partner is someone who was in a registered relationship with the deceased under the Relationships Register Act 2016 (SA) at the date of the deceased's death or someone declared to have been a domestic partner of the deceased under the Family Relationships Act 1975 (SA) at the date of the deceased's death [Succession Act 2023 (SA) s 3].

A person may be declared to be a domestic partner of another person under s 11B of the Family Relationships Act 1975 (SA) if they had been living in a close personal relationship and

What is a close personal relationship?

A close personal relationship means a relationship of 2 adult persons (whether or not they are related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis. It does not include a legally married couple or a relationship where one of the persons provides care for a fee or reward [Family Relationships Act 1975 (SA) s 11].

Declaration by the Court

A court may make a declaration that 2 persons were domestic partners on a particular date. The court must take into account all of the circumstances of the relationship, including any one or more of the following:

See Family Relationships Act 1975 (SA) s 11B(3).

The definition of domestic partner is relevant for the following matters affecting estates:

Where the deceased leaves a spouse and a domestic partner, but no children, each is entitled to an equal share of the deceased's estate, including any personal belongings, sentimental items and vehicles of the deceased, that would have gone to a sole spouse or domestic partner [Succession Act 2023 (SA) s 106]. If the deceased's spouse and domestic partner cannot agree on the division of personal belongings, the administrator may, after giving 3 months' notice, sell the belongings and share the proceeds equally between the spouse and partner.

The Supreme Court may, on application, order that a deceased's estate be distributed between a spouse and domestic partner in a particular way that it considers just and equitable [s 106(5)]. This may allocate the whole of the estate to the deceased's spouse or partner, if just and equitable to do so [s 106(6)].

This provision does not apply where the deceased has legally divorced their spouse.

If the deceased leaves a spouse or domestic partner and children, their estate will be distributed as follows:

Estates worth $120,000 or less

The spouse or domestic partner is entitled to the whole of the estate [Succession Act 2023 (SA) s 105(1)(b)] .

Estates worth more than $120,000

The spouse or domestic partner is entitled to $120,000, plus half of the balance of the estate and any personal belongings of the deceased (including sentimental items and motor vehicles) [s 105(1)(c)(i)].

The children of the deceased are entitled to the balance of the estate in equal shares [s 105(1)(c)(ii) and s 108].

If the deceased's spouse or domestic partner dies less than 30 days after the deceased dies, the law does not consider the spouse or domestic partner to have survived the deceased [s 101(4)]. The deceased's estate will be distributed as though there were no spouse or domestic partner.

For information about adopted, illegitimate or step-children, see Children only.

Note: the value of an estate for the purposes of intestacy increased on 26 February 2009 from $10,000 to $100,000 and on 1 January 2025 from $100,000 to $120,000. The applicable figure is the one in force as at the date of death.

Where there is no surviving spouse or domestic partner but there are surviving children of the deceased, those children receive equal shares of the estate [Succession Act 2023 (SA) s 105(1)(d) and s 108].

If a child has died but is survived by their children (grandchildren of the deceased), they are entitled to their parent's share in equal parts [s 108(e)(ii)]. If a child has died and is not survived by children, their share of the deceased's estate is divided among the deceased's living children [s 108(b)].

Under the law of intestacy, children includes adult and minor children and any adopted children [see Adoption Act 1988 (SA) s 9]. A person who has been adopted cannot share in their birth parent's estate unless the adoption occurred after the death of the birth parent.

Step-children who have not been formally adopted are not entitled to any portion of an estate under the law of intestacy but may be able to apply for a family provision order. See Inadequate provision.

All children, whether born within or outside a legal marriage or qualifying relationship (defined as a marriage-like relationship), are entitled to share in the intestate estate [see Family Relationships Act 1975 (SA) s 6]. A child born outside marriage or qualifying relationship, however, may need to apply to the court for a declaration if the deceased parent has never acknowledged paternity [ss 8, 9].

If a house is owned jointly by two people, and one dies, the house automatically belongs to the other. This cannot be changed by will.

If an intestate person who owned a house in their name only is survived by a spouse or domestic partner, and the spouse or domestic partner was living in the house at the time of the death, the spouse or domestic partner may elect to acquire the deceased's interest in the house [Succession Act 2023 (SA) s 102]. An election must be made within 3 months of the grant of administration or of receiving notice of their right of election. The spouse or domestic partner may continue to live in the house during this period.

If a spouse or domestic partner makes an election under s 102, the amount they are entitled to under the law of intestacy will be reduced by the value of the interest in the house [s 102(7)]. If their entitlement is less than the value of the property interest, they will need to pay into the estate the difference between the two.

If the spouse or domestic partner cannot afford to pay the difference between their entitlement and the value of the house, they may be able to apply to the Court to postpone the sale of the house until their children have all turned 18. Alternatively, they may wish to consider applying for a family provision order. See Inadequate provision.

Where a person dies without a spouse, domestic partner or children, the law of intestacy sets out the order in which their relatives will inherit their estate [Succession Act 2023 (SA) s 105(1)(e) and s 109]:

The estate of a person who dies without a valid will and with no living relatives will go to the Government [s 110]. The Attorney-General may, on application, waive the Government's entitlement to an estate in whole or in part in favour of another person or organisation [s 110(2)].

The law of intestacy is subject to the common law forfeiture rule, which prevents a person who kills another unlawfully from profiting or benefiting from their crime. If the forfeiture rule disqualifies a person from inheriting part of an estate under the law of intestacy, they will be treated as having died before the deceased [Succession Act 2023 (SA) s 125]. See Forfeiture for more information.