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Issues Paper 7 December 2015 Issues Paper 7 December 2015 South Australian Law Reform Institute Cutting the cake South Australian rules of intestacy The South Australian Law Reform Institute was established in December 2010 by agreement between the Attorney-General of South Australia, the University of Adelaide and the Law Society of South Australia. It is based at the Adelaide University Law School. Postal address: SA Law Reform Institute Adelaide Law School University of Adelaide Australia 5005 Telephone: (08) 8313 5582 Email: [email protected] Webpage: https://law.adelaide.edu.au/research/ law-reform-institute/ SALRI publications, including this one, are available to download free of charge from https://law.adelaide.edu.au/research/law-reform- institute/ (under ‘Publications: Reports and Papers’) If you are sending a submission to SALRI on this Issues Paper, please note: the closing date for submissions is Friday 27 May 2016; to make it easier to respond to the questions asked in the paper, there is a questionnaire in downloadable form at www.law.adelaide.edu.au/research/law-reform- institute/ (under ‘Current Projects’) we would prefer you to send your submission by email; we may publish responses to this paper on our webpage with the Final Report. If you do not wish your submission to be published in this way, or if you wish it to be published anonymously, please let us know in writing with your submission. TABLE OF CONTENTS TERMS OF REFERENCE ...................................................................................................................................... 4 PARTICIPANTS ................................................................................................................................................ 4 ACKNOWLEDGEMENTS ..................................................................................................................................... 5 DISCLAIMER ................................................................................................................................................... 5 ABBREVIATIONS .............................................................................................................................................. 5 OVERVIEW ...................................................................................................................................................... 7 BACKGROUND ................................................................................................................................................ 9 BRIEF OUTLINE OF THE LAW ............................................................................................................................... 9 LIMITATIONS OF THE LAW ............................................................................................................................... 13 SOCIAL CHANGES .......................................................................................................................................... 14 CONSISTENCY WITH OTHER STATES ................................................................................................................... 15 GENERAL APPROACH OF THE NATIONAL COMMITTEE ........................................................................................... 16 SUMMARY OF SOUTH AUSTRALIAN INTESTACY LAW .................................................................................. 18 DISTRIBUTION OF THE ESTATE .......................................................................................................................... 18 JOINTLY OWNED PROPERTY ............................................................................................................................. 23 SUPERANNUATION ........................................................................................................................................ 24 REFORM ISSUES ............................................................................................................................................ 25 DISTRIBUTION OF THE ESTATE AND RELATED ISSUES .................................................................................. 25 SPOUSE ....................................................................................................................................................... 25 The surviving spouse or domestic partner ........................................................................................... 25 The general policy trend ................................................................................................................................. 25 Who is a domestic partner? ............................................................................................................................ 26 One surviving spouse or domestic partner and no descendants ......................................................... 29 A surviving spouse and domestic partner or two or more domestic partners .................................... 31 Surviving spouse and descendants ...................................................................................................... 36 Spouse’s preferential legacy when spouse is not entitled to whole estate ......................................... 40 Purpose of the spouse’s preferential legacy ................................................................................................... 41 Amount of spouse’s preferential legacy .......................................................................................................... 42 Alternatives to a preferential legacy ............................................................................................................... 45 Adjusting the amount of the preferential legacy ............................................................................................ 46 Preferential legacy when there is immoveable property in more than one State .......................................... 48 Interest on preferential legacy ........................................................................................................................ 51 Calculation of interest ..................................................................................................................................... 51 Spouse’s right to chattels .................................................................................................................... 53 ISSUE (DESCENDANTS) ................................................................................................................................... 59 Deemed familial relationships ......................................................................................................................... 60 South Australian Law Reform Institute / Issues Paper 7 / December 2015 1 Posthumous children ...................................................................................................................................... 62 Adopted children............................................................................................................................................. 66 Half and full blood descendants ...................................................................................................................... 69 Distribution where there is no surviving spouse, but there are surviving issue ................................... 70 Step-children ....................................................................................................................................... 70 Social trends .................................................................................................................................................... 71 Arguments for treating step-children as if they were issue of the intestate .................................................. 73 Arguments against treating step-children as issue of the intestate ................................................................ 73 Ideas for giving step-children a right to inherit in some circumstances only .................................................. 75 Step-parents ........................................................................................................................................ 76 NEXT OF KIN ................................................................................................................................................ 78 Arguments for limiting the next of kin who can inherit .................................................................................. 80 Arguments against limiting next of kin who can inherit .................................................................................. 80 BONA VACANTIA .......................................................................................................................................... 81 INHERITING THROUGH TWO LINES OF RELATIONSHIP ............................................................................................. 83 PER STIRPES AND PER CAPITA DISTRIBUTION ....................................................................................................... 84 SPOUSE’S RIGHT TO ACQUIRE PROPERTY FROM THE ESTATE .................................................................................... 91 Any property? ................................................................................................................................................. 91 Arguments for extending the spouse’s right to purchase property from the estate .....................................
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