Who Inherits Without a Will in Australia? Intestacy by State

When someone dies without a valid will in Australia, known as dying intestate, each state and territory’s own intestacy rules decide who inherits, usually starting with a statutory legacy for a surviving spouse before children or other relatives receive a share.

What Intestacy Means

A person dies intestate when they die without a valid will, or with a will that does not effectively dispose of their whole estate. In either case, the part of the estate not covered by a valid will is distributed under the intestacy rules of the state or territory where the deceased was domiciled, generally where they had their permanent home, applied by the person who obtains letters of administration, usually the closest eligible relative. Every jurisdiction's intestacy rules follow a broadly similar shape, a statutory legacy for a surviving spouse or partner, then a division with children, then a widening circle of other relatives if there is no spouse or child, but both the legacy amount and some of the finer rules differ by jurisdiction.

The General Order of Inheritance

In every Australian jurisdiction, a surviving spouse or partner who survives the deceased alone, with no surviving children, generally inherits the whole estate. Where the deceased is survived by both a spouse or partner and children, the spouse takes a statutory legacy first, plus personal effects and, depending on the jurisdiction, either the whole remainder or a defined share of it, with children entitled to the rest. If there is no surviving spouse or partner, children inherit the whole estate in equal shares (with a deceased child's own children generally taking their parent's share). If there is no surviving spouse, partner or child, the estate passes to a widening circle of relatives in a fixed statutory order, typically parents, then siblings, then grandparents, then aunts and uncles, and finally, if no eligible relative can be found, to the state or territory government itself.

The Spouse's Statutory Legacy by Jurisdiction

The statutory legacy, the spouse's fixed first entitlement before any split with children, is where jurisdictions diverge most sharply, both in amount and in how the amount is set. Some jurisdictions fix a flat dollar figure in the statute itself; others index the legacy to inflation or set it by periodic gazette notice, which means the current dollar figure changes over time and must be checked against the relevant register or gazette rather than assumed from an older source.

Where this table gives a base figure rather than a single current dollar amount, that is deliberate. New South Wales, Victoria, Western Australia, South Australia and Tasmania all move their statutory legacy over time, whether by CPI indexation, annual gazettal or ministerial order, and the current figure at any given moment should be confirmed against that jurisdiction's official gazette or legislation register rather than taken from an article that may already be out of date by the time it is read. Queensland is the clear exception: its $150,000 legacy is fixed directly in the Succession Act 1981 (Qld) and does not move with inflation at all, so it is safe to cite as a current figure without a separate check.

Queensland's Fixed Legacy

Queensland is the only jurisdiction in this guide whose statutory legacy is fixed in dollar terms and does not move with inflation. A surviving spouse's statutory legacy in Queensland is $150,000, set directly in the Succession Act 1981 (Qld) and unchanged by CPI or any indexation mechanism, unlike the position in New South Wales and Victoria, where the equivalent figure rises over time. This makes Queensland's figure unusually simple to cite correctly, but it also means the legacy has not kept pace with cost-of-living increases in the way some other jurisdictions' legacies have.

Children and the Remainder of the Estate

Once the statutory legacy (if any) is paid, the remaining estate is divided between the surviving spouse and children under each jurisdiction's own statutory formula, which can mean an equal split, a defined fraction to the spouse with the rest to the children, or, in some jurisdictions, the whole remainder to the spouse where there is only one surviving child. Where there is more than one surviving spouse or partner recognised under a jurisdiction's law, for example a legal spouse and an eligible de facto partner, some jurisdictions provide for the legacy and remainder to be divided or shared between them, or for the partners to reach a private distribution agreement. Because these formulas differ by jurisdiction and by family structure, the exact division for a specific family should be confirmed against the relevant Act rather than assumed from another state's rule.

When There Is No Spouse or Child

If the deceased is survived by no spouse, partner or child, the estate passes to a widening circle of other relatives in a fixed order set by the relevant jurisdiction's intestacy rules, typically the deceased's parents, then siblings (with a deceased sibling's own children generally taking their parent's share), then grandparents, then aunts and uncles and their children. If no eligible relative can be found under this chain in any jurisdiction, the estate ultimately passes to the state or territory government, sometimes with a discretion to make a payment to a person who can show a moral claim on the estate, such as someone the deceased was close to but not formally related to.

Avoiding Intestacy

The only way to avoid a jurisdiction's default intestacy formula is to make a valid will that covers the whole estate. Intestacy rules are designed as a reasonable default for the average family, but they cannot account for a blended family, an unmarried partner not recognised as a de facto partner, specific gifts a person wants to make, or a wish to exclude someone who would otherwise inherit under the statutory order. See Making a Will in Australia for the formal requirements in each jurisdiction, and Contesting a Will in Australia for what happens when even a will, or an intestate estate, does not adequately provide for someone.

This article provides general legal information about intestacy (dying without a valid will) in Australia. It is not legal advice and does not take into account your individual circumstances. Intestacy rules, and the spouse’s statutory legacy in particular, differ between New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory, and several jurisdictions’ current legacy figures are indexed and change over time. This information was last verified on 20 July 2026. For advice about a specific estate, consult a legal practitioner admitted in the relevant state or territory.