Does NSW have community property laws that affect your will?

Updated 22 October 2026

Wills - Potential Problem #41: Ignoring Community Property Laws

NSW does not have a general community property system that automatically gives each spouse half of everything acquired during marriage. For estate planning, the important questions are what you own, how you own it and which assets your will can actually distribute.

An ownership mistake can prevent a particular gift from working as intended without making the whole will invalid. A carefully signed will may still leave a beneficiary disappointed if the home passes to a surviving joint owner or a superannuation benefit is paid directly to someone else. Checking ownership is therefore an essential part of preparing or reviewing a NSW will.

Marriage does not automatically create shared ownership

The Australian Law Reform Commission explains that Australia is not a community property jurisdiction. Marriage or living together does not, by itself, alter ownership. Legal title and any equitable interests, such as an interest arising under a trust, must be identified.

This does not mean a spouse has no financial rights. Under family law, a court can alter property interests when the legal requirements are met. The Federal Circuit and Family Court explains that there is no fixed formula for dividing property after separation. Those proceedings are different from administering a deceased estate.

Avoid assuming either that everything is automatically shared equally or that the name on a document always resolves every possible claim. Tell your solicitor about contributions, family loans, agreements and promises concerning significant assets.

Check how the home and other land are owned

Obtain a current title search rather than relying on family recollection. The distinction between joint tenants and tenants in common can determine whether your interest passes through your estate. Legal Aid NSW’s estate guidance explains these different outcomes.

For example, a parent may want their interest in the home to go to children from an earlier relationship. If the home remains jointly owned with a new partner as joint tenants, a gift in the will alone will not ordinarily achieve that result.

Changing ownership requires separate advice and proper implementation. Consider the surviving partner’s housing needs, the mortgage and the wider estate plan. Do not assume signing a new will also changes the title.

Leaving a share to a child can create a new co-ownership relationship with the surviving partner. Discuss whether that is workable. A right of occupation or testamentary trust may be worth considering, depending on ownership and the family’s needs. These arrangements require careful drafting and should not be treated as interchangeable with a simple gift of the home.

A real case about an inheritance promise

In Kramer v Stone (2024), a NSW farm owner promised a share farmer that he would inherit the farm. Relying on that promise, he continued living and working there for approximately 23 years instead of pursuing more profitable work. Her final will left the farm to her daughter and a cash legacy to the farmer.

The NSW Supreme Court held that the executors held the farm on trust for the farmer, replacing his cash legacy. The High Court dismissed the executors’ appeal. The case concerned an enforceable promise and detrimental reliance, not community property or invalidation of the entire will.

The practical lesson is to disclose significant inheritance promises when preparing your will. Not every promise is enforceable, but a will cannot safely be drafted as though existing legal obligations do not matter.

A spouse may have a family provision claim

A surviving spouse does not automatically receive a fixed percentage under every NSW will. However, spouses, qualifying de facto partners, children and other eligible people may apply for family provision if adequate provision has not been made for their proper maintenance, education or advancement in life.

Eligibility does not guarantee success. The court considers the applicant’s circumstances, the estate and competing claims. Applications ordinarily must be filed within 12 months of death, with permission required to proceed outside that period.

In limited circumstances, the Supreme Court can designate property outside the ordinary estate as notional estate for a family provision claim. Joint ownership should not be treated as a guaranteed way to defeat such a claim.

Superannuation companies and trusts need separate attention

As MoneySmart explains, superannuation does not automatically form part of your estate. Review the fund’s rules and your death benefit nomination. A valid binding nomination to your legal personal representative can direct payment to the estate, where your executor administers it under the will. The executor does not receive it personally.

This is a substantial planning gap. ASIC’s March 2025 review of 10 superannuation trustees found that 57% of living members in the reviewed funds had no beneficiary nomination as at 31 March 2024. This is a finding about those funds, not a statistic covering every Australian.

Company assets also require care. ASIC explains that a company owns its assets separately from its shareholders. Your shares may enter your estate; the company’s property does not automatically become yours to give away. For existing trusts, review the trust deed and any interests or succession powers you hold. NSW Government guidance explains why trust assets usually sit outside the personal estate.

Review the plan when relationships or countries change

Separation alone does not revoke a will. Marriage can revoke a will, subject to exceptions, including appropriate provision for a contemplated marriage. Divorce generally revokes gifts and certain appointments concerning the former spouse, subject to exceptions; it does not simply cancel the entire document. Arrange a review rather than relying on these rules to produce your preferred outcome.

If you own overseas property or have significant connections with another country, obtain coordinated advice about the applicable ownership and inheritance rules. An international will addresses formalities; it does not override every foreign succession or matrimonial-property rule. Give each adviser copies of any other wills so a new document does not unintentionally undermine the wider plan.

Practical steps before signing your will

1. Map the assets. List property, accounts, investments, superannuation and business interests. Record the owner and ownership structure beside each item.

2. Collect the evidence. Bring title searches, loan documents, trust deeds, company records, super nominations and relevant agreements to your appointment.

3. Explain the family circumstances. Identify dependants, earlier relationships and commitments you have made. Discuss who needs housing or ongoing financial support.

4. Coordinate the documents. Check that your will, ownership arrangements and nominations work together. Where a change is needed, confirm it has actually been completed.

5. Review after significant changes. Revisit the plan after marriage, separation, divorce, a major purchase or a beneficiary’s death. Let your executor know where the current documents are stored.

Once a death has occurred, the executor should verify ownership before treating an asset as estate property. Collect current records, establish liabilities and seek advice on disputed interests. Giving property away before resolving ownership or claims can create problems for the executor as well as beneficiaries. Keep records of decisions and distinguish assets administered under the will from those transferred outside it.

Planning costs and advice

A straightforward single will starts from $440 including GST. We confirm your fee in writing before we start. Trust planning, ownership changes, overseas advice and estate disputes may require additional work and separate fees.

CM Lawyers assists with wills and estate planning and estate administration. An ownership review helps identify what your will can distribute before you decide who should receive it.

Key resources

• Australian Law Reform Commission — Family Law for the Future: paragraph 6.11 explains that Australia is not a community property jurisdiction.

• Federal Circuit and Family Court — Financial or property overview: the separate process for resolving property arrangements after separation.

• Legal Aid NSW — Distributing the estate: joint tenancy, tenants in common and estate assets.

• Kramer v Stone (2024): official High Court judgment about an inheritance promise, detrimental reliance and obligations binding an estate.

• Legal Aid NSW — Family provision claims: eligibility, relevant circumstances and the usual 12-month deadline.

• NSW Supreme Court — Family provision jurisdiction: Justice Lindsay’s explanation of family provision and notional estate, including paragraphs 67 and 83.

• MoneySmart — Who gets your super if you die: beneficiary nominations and payment to the legal personal representative.

• ASIC — Taking ownership of death benefits: page 19 gives the 57% nomination finding and its reporting date.

• ASIC — Shareholder rights and responsibilities and NSW Government — Learn about wills: company ownership, trusts and assets outside a personal estate.

• Legal Aid NSW — Making a will: reviewing wills following marriage, separation and divorce.

• Attorney-General’s Department — International wills: the scope of the international wills convention.

• CM Lawyers — Wills and estates and estate administration: assistance coordinating ownership and inheritance arrangements.