Due to changing family structures, the inheritance rights of children under Australian family law has been more challenging to deal with.
Under the Family Law Act, there are provisions that govern the inheritance rights of children:
The challenge lies in cases of adopted children and blended families. For a better understanding of the provisions of the Family Law Act and how they apply to your situation, you should speak to a solicitor.
For now, we’ll tackle the different types of children in our society. We will also discuss how the inheritance rights of children apply to them.
Modern Family Structures in Australia
Children born of reproductive technologies
Mothers who are incapable of giving birth naturally make use of reproductive technologies. However, this may complicate the concept of who is the parent and who carries the responsibility of it.
New South Wales and Queensland legislation state that when a woman undergoes a fertilisation procedure, the partner is presumed to be the father of the child. Provided that, he consents to the procedure.
Now, if a woman opts to produce a child using another woman’s ovum, the former woman will still be considered the mother of the child.
In short, the parents who obtain the pregnancy and childbirth are the legal parents of the child. However, the biological donors are not considered to be the parents of the child.
Adopted children
The inheritance rights of children who are adopted are the same; they are related only to their foster parent and not to their biological parents.
Illegitimate children
An illegitimate child is a child borne out of wedlock. It means that the child was born outside a valid marriage between the parents. In the past, illegitimate children had no status in society. This posed concerns for parents who want to marry. Why? This would affect the preservation of their legitimate child’s inheritance rights.
Given that the parents marry, later on, the law still considers the child illegitimate. Back then, illegitimate children didn’t exactly have entitlements under inheritance standards. Now, they just have the same rights as legitimate children!
A parent-child relationship can be understood if the child’s mother and father have been married in the relationship. Several states also modified their laws about the inheritance rights of children to favor illegitimate children the right to inherit through one or both parents.
Stepchildren
In relation to modern families, adoption has been an option for everyone and is not really uncommon in our society. The inheritance rights of children may vary in each state, but here are a few in Australia:
- In Queensland, the law considers stepchildren as the same as biological children for the purpose of eligibility to make a claim on an estate. The stepchild-stepparent relationship only stops after the termination of a marriage, like divorces or separations.
- Given that the stepchild’s biological parent dies before the stepparent’s death, and that the relationship between the stepchild’s biological parent and stepparent existed at the same time, the foster relationship still continues
- In New South Wales, stepchildren do not share equal rights with biological children. Unlike in Queensland, stepchildren are not automatically eligible to inherit an estate. For them to be eligible, they must demonstrate that they have an involvement with or is dependent on the same household as the deceased person.
Dividing Your Estate For Inheritance Rights Of Children
You should be cautious in bestowing your estate, especially when you’re considering the inheritance rights of children. While there is the obvious option of equally dividing your estate among your children in your Will, it might not make sense to other families.
If your Will includes real estate and other material assets, you’ll need to determine the value of each. Consequently, you must decide what makes the most sense to leave to each child. If you don’t, conflicts may arise between siblings when the division is not handled properly.
In dividing equal amounts, consider these factors:
- Each child is emotionally capable and responsible
- Each child has similar needs and has received similar support from their parents
- No disability and serious illnesses
- Has finished their studies and are independent
- Financially responsible
Leaving different and unequal amounts is a difficult decision to make. Here are a few factors as well to keep in mind when doing so:
- One of your children acted as your caregiver and you want to compensate for their lost time and efforts.
- You’ve supported one of your children who needed the money at some point in their life and you want the distribution to be equitable. Thys, you compensate the other children by giving them more.
- One of your children is unable to take care of themselves financially, emotionally, mentally, and physically.
- In cases of passing down a family business, you must decide on who is the more financially capable child and who is up for the task.
For more information about property settlement rules, check out the Federal Circuit and Family Court of Australia’s website. There are more discussions on Finances and Property. For assistance, speak to a family law expert.
Inheritance Rights of Children: Could A Child Sue For More?
Relationships between siblings can turn sour when we’re talking about the inheritance rights of children and when division of property is not fair or equal. How likely is the outcome of your division of assets to change in your Will?
This is because changes may happen in your Will after you pass away because children can claim more assets. Consequently, the children may contest in court that there was manipulation at the time their parent wrote the Will.
Another way to challenge a Will is to prove that the Will-maker was mentally unable (testamentary capacity is lacking) to complete the Will, leading to the different and unequal distribution of your assets.
Protecting Inheritance Rights With Legal Advice
As mentioned above, you should consider different scenarios, as nobody can be sure what could happen to their Will after they pass away. You wouldn’t want your children taking things to court, as you only want the best for them.
Siblings also need to be guided when facing this kind of possibility and know if it’s worth tearing down family bonds.
At JB Solicitors, we have family law experts who specialise in handling Wills and estate planning. We also handle mediation services between family members who can’t agree on a family law matter. Our fixed-fee prices ease your financial burden and help you plan your legal journey properly.
Talk to us today.
Last updated 18 March 2025
