Queensland Consolidated Acts
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SUCCESSION ACT 1981 - SECT 36
Distribution of entitlement if more than 1 spouse
36 Distribution of entitlement if more than 1 spouse
(1) If more than 1 spouse of an intestate are entitled to the whole or a part
of the intestate’s residuary estate, the entitlement is to be distributed
(a) in accordance with a written agreement between the spouses
about distributing the entitlement between them (a
"distribution agreement" ); or
(b) in accordance with an order made under
this section distributing the entitlement between the spouses (a
"distribution order" ); or
(c) in equal shares as decided by the personal
representative, if, at the time of distribution—
(i) the spouses have been
given a notice under subsection (3) and 3 months have passed since the last
of the notices was given; and
(ii) the personal representative has no notice
of a distribution agreement; and
(iii) the personal representative—
no notice of an application for a distribution order; or
(B) has been
notified in writing by the spouses that the personal representative may
distribute their entitlement equally even though an application for a
distribution order has previously been made; or
(C) has a copy of an order of
the court striking out or discontinuing an application for a
(2) However, for a distribution under subsection (1) (c)
, if the intestate is survived by issue, the entitlement under schedule 2 to
the $150,000 must be distributed in equal shares.
(3) The personal
representative may give the spouses a notice stating the personal
representative may be entitled to distribute any entitlement of the spouses
equally if they do not, within 3 months after the notice is given—
into a written agreement about distributing the entitlement between them and
give the personal representative written notice of the agreement; or
apply to the court for an order distributing the entitlement between them and
give the personal representative written notice of the application.
any of the spouses asks the personal representative to give the notices that
may be given under subsection (3) , the personal representative must give the
notices (including a notice to that person) as soon as practicable.
intestate’s spouse or personal representative may apply to the court for a
(6) However, an application for a distribution order may
not be made if there is a distribution agreement or distribution of the
entitlement has commenced under subsection (1) (c) .
(7) The court may order
that the entitlement be distributed in the way it considers is just and
(8) In deciding what is just and equitable, no assumption is to be
made in favour of an equal distribution as a starting point or otherwise.
If the court considers it is just and equitable, it may order that an
entitlement be distributed solely to 1 of the spouses.
distribution order may include conditions.
(11) Nothing in this section
requires a personal representative to distribute an entitlement at a time that
would preclude the operation of section 44 (3) in relation to the
(12) To prevent any doubt, it is declared that the
Trusts Act 1973 , section 67 (3) does not authorise a personal representative
to distribute an entitlement of the spouses before the time the personal
representative becomes entitled to distribute the entitlement under
subsection (1) .
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