Love Makes a Family, But the Law Requires Blood
In the fabric of our modern Australian society, the blended family is a common and cherished thread. We build lives, forge bonds, and raise children not merely by biology, but by years of shared breakfasts, school pickups, and mutual affection. For our LGBT community, chosen family is often the strongest bond of all.
We live by the truth that love makes a family.
But there is a cold, hard reality we must face: The law requires blood.
Read in this article
- Love Makes a Family, But the Law Requires Blood
- The 'Consanguinity' Trap
- This is Inheritance Erasure
- The Merger Minefield
- Don’t Believe Me? Check the Math
- The Simple Will is Not the Solution for a Blended Family
- The Solution: Intention + Structure
- FAQ's
- Q. "I’ve raised my step-daughter since she was three years old. If I die without a Will, surely the law treats her as my own?"
- Q. "My partner and I have 'Simple Wills' leaving everything to each other. Doesn't that cover it?"
- Q. "I keep hearing the term 'Inheritance Erasure.' What does that actually mean for us?"
- Q. "I don't want to upset my new partner by insisting on a complex Will. Can't I just trust them to do the right thing?"
- Q. "Is there a way to ensure my kids get an inheritance without forcing my partner to sell our home?".
Love Makes a Family, But the Law Requires Blood
In the fabric of our modern Australian society, the blended family is a common and cherished thread. We build lives, forge bonds, and raise children not merely by biology, but by years of shared breakfasts, school pickups, and mutual affection. For our LGBT community, chosen family is often the strongest bond of all.
We live by the truth that love makes a family.
But there is a cold, hard reality we must face: The law requires blood.
If you are a step-parent and you pass away without a valid Will (ie: Intestate) the Australian legal system does not see the years of love you gave to your step-children. It sees biology. And in the eyes of Australian Intestacy Law, your step-children are often considered legal strangers.
The 'Consanguinity' Trap
At the heart of this issue is an ancient legal principle called consanguinity (a fancy word for 'blood relation' if you want to impress your mates at the next BBQ).
Australian statutory laws were designed decades ago for a 'nuclear family' model that everyday starts to look less and less like modern Australia. These laws assume that leaving everything to a spouse, means the children will eventually inherit.
In a standard nuclear family, that usually works. But in a blended family, it is often a disaster.
This is Inheritance Erasure
If you die intestate, without a Will document, the government effectively creates a Will for you (and you probably will not like what it does). In almost every state or territory, this default script prioritises your current spouse and your biological children. Unless you have formally adopted them, your step-children, the ones you may have raised as your own - often have no automatic right to inherit a single cent.
The Merger Minefield
Why do so many blended families fall into this trap? It isn't because they don't care. It's because they are navigating what we call the 'Merger Minefield.'
In blended families, money and legacy conversations cab be emotionally charged. You might worry that discussing making a Will document sounds like you don't trust your new partner. You might worry about upsetting your biological children.
So, the 'Peace-Maker' (cue Peach Dove emoji) in your brain takes over. You decide to avoid the conflict today to keep the peace. You stay atestate.
But here is the hard truth: You are buying peace for today at the cost of a war for your children tomorrow.
Studies show approximately 8 out of every 10 litigants are from Step children trying to access some form of legal provisions from the estate of a deceased step parent. Because the rigid intestacy formula automatically bypasses them, step-children are compelled to litigate to secure any portion of the estate. The necessity of initiating a Family Provision Claim (FPC) transforms a family's grief into a contested legal action.
Don’t Believe Me? Check the Math
We often think, 'It will be fine, my partner knows what I want.'
- But hope is not a strategy. And just 'knowing what you want' is not a legal document. To help you see the reality of the situation, we have released a new digital tool: The Intestacy Estimator.
This isn't a quiz about your feelings. It is a calculator based on the hard statutory laws of your specific Australian State or Territory.
Check The Intestacy Estimator Now
Go ahead. Plug in your details. Select 'No Will.' Look at the inheritance distribution. If you have step-children, look for their names in the result. You likely won't find them. And to add insult to injury, because the intestacy laws are different in each state and territory, creating a 'postcode lottery' where a family's inheritance rights are determined by their place of residence at the time of death.
The Simple Will is Not the Solution for a Blended Family
(And it's best you don't get me started on talking about the disaster that can be DIY and Post Office Will Kits)
Even if you do have a Will document, blended families face a second risk.
- Many couples sign Simple Mirror Wills (I leave everything to you; you leave everything to me). The logic is efficient: 'When the survivor dies, they will split it equally among all the kids.'
- But life changes. The surviving partner might remarry. They might have more children. They might fall out with your children. Or they might simply change their Will.
Without a Protective Will structure (using tools like Mutual Wills contracts or Testamentary Trusts), the "Simple Will" creates a window of opportunity for your biological children to be unintentionally disinherited by your partner's future choices.
The Solution: Intention + Structure
This article isn't meant to scare you. It is meant to validate the complexity you feel.
You aren't crazy for finding this hard. It is hard. You are managing competing loyalties between the partner you love and the children you protect.
- But the blunt instrument of the law cannot navigate the nuances of your love. Only you can do that, by moving from Atestate (vulnerable) to Protected.
For step-families, love is the foundation, but structure is the shelter.
If you are ready to ensure the law honors the family you have actually built, not just the one the government assumes you have, let’s have a conversation.
FAQ's
Your Blended Family Estate Planning Questions, Answered. Here’s a quick summary of what you need to know about step families' who live atestate (without a Will document in place).
Q. "I’ve raised my step-daughter since she was three years old. If I die without a Will, surely the law treats her as my own?"
A. I wish I could tell you yes, but the hard truth is no. In the eyes of Intestacy law (dying Atestate), step-children are generally considered "legal strangers" unless you have formally adopted them. Even if she calls you "Dad," the government’s default distribution formula typically passes your assets solely to your biological children or current spouse, effectively erasing her from your legacy. The law requires a biological link; only a Will can create a logical one.
Q. "My partner and I have 'Simple Wills' leaving everything to each other. Doesn't that cover it?"
A. This is the most common trap we see in the "Merger Minefield" of blended families. A Simple Will relies entirely on trust, not structure. If you pass away first, your partner inherits everything. Legally, those assets become theirs to do with as they please. They could remarry, have more children, or simply change their Will later, leading to the "unintentional disinheritance" of your biological children. A Simple Will works for the first death, but often fails the children of the first marriage after the second death.
Q. "I keep hearing the term 'Inheritance Erasure.' What does that actually mean for us?"
A. Inheritance Erasure is the phenomenon where the legal system—or a poorly drafted Will—accidentally wipes out the financial legacy of a specific group of people, usually step-children. It happens because our laws prioritize "Consanguinity" (blood relations) over lived relationships. If you are Atestate, the erasure is automatic because the law literally does not have a category for "step-child" in its distribution formula. It’s not malicious; it’s just an outdated system failing to recognize your modern family.
Q. "I don't want to upset my new partner by insisting on a complex Will. Can't I just trust them to do the right thing?"
A. This is the "Peacemaker's" dilemma: avoiding a difficult conversation today to keep the harmony. But I always ask my clients this question: "Am I buying peace for today at the cost of a war for my children tomorrow?". It isn't about lack of trust; it is about the unpredictability of life. If your partner remarries after you are gone, their new spouse will have a legal claim on your assets that overrides a verbal promise. A Protective Will protects your partner and your children, removing the burden of "just trusting" from their shoulders.
Q. "Is there a way to ensure my kids get an inheritance without forcing my partner to sell our home?".
A. Absolutely. This is where strategy beats hoping. We often use Life Insurance as an "Equalizer". The policy can pay a lump sum directly to your biological children (bypassing the Will and the potential for conflict), creating an immediate inheritance for them. This relieves the pressure on the family estate, allowing your surviving partner to stay in the family home securely. It turns a "win-lose" battle over the house into a "win-win" solution for everyone you love.
Call us today on 1300 137 403 or email us here for a no-obligation private chat about your situation.
Drew Browne is a specialty Financial Risk Advisor working with Small Business Owners & their Families, Dual Income Professional Couples, and diverse families. He's an award-winning writer, speaker, financial adviser and business strategy mentor. His business Sapience Financial Group is committed to using business solutions for good in the community. In 2015 he was certified as a B Corp., and in 2017 was recognised in the inaugural Australian National Businesses of Tomorrow Awards. Today he advises Small Business Owners and their families, on how to protect themselves, from their businesses. He writes for successful Small Business Owners and Industry publications. You can read his Modern Small Business Leadership Blog here. You can connect with him on LinkedIn. Any information provided is general advice only and we have not considered your personal circumstances. Before making any decision on the basis of this advice you should consider if the advice is appropriate for you based on your particular circumstance.
