Friends with Benefits to Inherit

We’ve all seen a movie like ‘No Strings Attached’ starring Natalie Portman and Ashton Kutcher, where friends try to have their cake and eat it by extending their relationship to the bedroom while trying to let feelings interfere with the friendship.  As it is in real life, casual relationships or ‘friends with benefits’ can become messy socially, but not many people think about the legal ramifications that can play out.

In this article, we will look at what happens when a friend who was receiving ‘physical benefits’ does not benefit financially from their lover’s estate when they die under a Will.

Challenging An Estate

When it comes to inheriting property upon the death of a loved one, the relevant legislation in Queensland entitles a family member or spouse to make a claim for a distribution from the estate if the Will gives them less than they believe that they deserve or if they are left out entirely.

The legislation also grants de facto partners the same inheritance rights as legally married couples, with the ‘de facto’ meaning a relationship between two people, from either the same or opposite sex, which lasts for a period of two years or more and being up until the deceased’s death.

However, does a ‘friends with benefits’ relationship qualify as a de facto relationship, thus allowing the surviving ‘friend’ to make a claim against their lover’s estate?

What the court will consider?

The Courts have had a few opportunity to consider this modern type of relationship and have largely interpreted them on a case-by-case basis.  Nevertheless, when presented with this question, the court will consider among other things:

• the length of the relationship;
• the nature and extent of common residence; and
• whether there was or had been a sexual relationship.

Recent Cases

Interestingly, the NSW Supreme Court was recently tasked with considering a family provision application based on a ‘friends with benefits’ relationship in the recent case of Estate of Zaheer.

In this case, the presiding judge, Justice Hallen, concluded that ‘friends with benefits’ meant “a friend with whom one has an occasional and non-committal sexual relationship”.  However, the crux of the dispute came down to the question of whether the friends with benefits relationship could also be interpreted at the higher threshold of a de facto relationship.  In the end, Justice Hallen ruled that the applicant should receive 15 percent of the deceased’s estate on the basis that the friends with benefits relationship had certain aspects of a de facto relationship arrangement, namely the fact it lasted up until the deceased’s death.

In another case, the Estate of HRA deceased, the Court made similar interpretations with the key takeaway being just how important it is that relationship lasted up until the death of the deceased person – though it did not have to be physical up until the death.  However, in this matter, this could not be established after it was found that the last real contact the two shared was some years prior to the deceased’s demise.

Summary

From these cases, we can see that it is critical for the scorned lover to establish that the friends with benefits relationship was actually more and that they were really de factos. So, if Ashton Kutcher had fallen off the perch at the end the film, then Natalie Portman would have a great case to make a claim from his estate (if she had been excluded from his Will).

Back in reality, if you and your ‘friend’ are regularly getting steamy in the sheets but you want to protect your estate, it would be wise to have a chat with one of our lawyers today.

Author:  Samuel Kerr