South Australian Numbered Acts South Australian Numbered Acts102—Election by spouse or domestic partner to acquire interest in dwelling
(1) Subject to this Part, if the intestate estate of an intestate who is survived by a spouse or domestic partner includes an interest in a dwelling in which the spouse or domestic partner of the intestate was residing at the date of the intestate's death, the spouse or domestic partner may elect to acquire that interest at its value as at the date of the death of the intestate.
(2) An election under this section must be made—
(a) if the spouse or domestic partner is an administrator of the intestate estate—within 3 months after the date on which administration of the intestate estate was granted; or
(b) if the spouse or domestic partner is not an administrator of the intestate estate—within 3 months after the administrator gives the spouse or domestic partner notice requiring them to make an election under this section,
or within such longer period as the Court may allow.
(3) The Court may, on application, if it considers there are proper reasons for doing so, extend the time within which an election under this section may be made.
(4) A person who makes an election under this section may revoke it at any time before the transfer of the interest in the dwelling to them.
(5) An election, or revocation of an election, under this section is made by the spouse or domestic partner giving notice of the election or revocation—
(a) if the spouse or domestic partner is an administrator of the intestate estate—
(i) to any other administrator of the estate; and
(ii) to every person beneficially interested in the estate who has legal capacity; and
(iii) if any person beneficially interested in the estate lacks legal capacity—to the person who is legally responsible for the administration or management of the estate of the beneficiary; or
(b) if the spouse or domestic partner is not an administrator of the intestate estate—to the administrator of the estate.
(6) A notice under this section must be given in accordance with the regulations.
(7) If a person makes an election under this section to acquire an interest in a dwelling—
(a) the amount to which the person is entitled out of the intestate estate will be reduced by the value of that interest; and
(b) if the value of that interest exceeds the amount to which the person is entitled out of the intestate estate, the person must, on making the election, pay into the intestate estate the difference between that value and the value of the person's interest in the intestate estate.
(8) The administrator of an intestate estate must obtain a valuation of a dwelling in relation to which a spouse or domestic partner of the intestate may acquire an interest if—
(a) the value of the dwelling is not agreed on by all persons entitled to share in the distribution of the estate; or
(b) a valuation of the dwelling is requested by a person acting on behalf of a beneficiary who lacks legal capacity.
(9) A valuation for the purposes of subsection (8)
must be conducted by a person who lawfully carries on a business that consists of or involves valuing land.
(10) A spouse or domestic partner of an intestate may acquire an interest in a dwelling under this section even though the spouse or domestic partner is—
(a) an administrator of the intestate estate or a trustee; or
(b) a minor; or
(c) a person who lacks legal capacity.
(11) If a spouse or domestic partner of an intestate revokes an election made by them under this section, any costs incurred in giving effect to that election are to be deducted from their share of the intestate's estate.
(a) an intestate is survived by—
(i) a spouse and 1 or more domestic partners; or
(ii) no spouse but 2 or more domestic partners; and
(b) the estate of the intestate includes an interest in a dwelling in which—
(i) the spouse and 1 or more domestic partners; or
(ii) 2 or more domestic partners,
were residing at the date of the intestate's death; and
(c) more than 1 of those persons desires to acquire the interest,
the preceding provisions of this section (and sections 103
and 104
) do not apply, but instead any of those persons may apply to the Court for an order authorising the acquisition of the interest.
(13) An application to the Court under subsection (12)
must be made—
(a) within 3 months after the date on which administration of the intestate estate is granted; or
(b) within such longer period as the Court may allow.
(14) An administrator of an intestate estate must not dispose of an interest in a dwelling referred to in subsection (12)
unless—
(a) the period within which an application to the Court under that subsection may be made has expired and no application has been made; or
(b) the dwelling has ceased to be the ordinary place of residence of all persons entitled to apply to the Court under subsection (12)
.
(15) An administrator of an intestate estate must not dispose of an interest in a dwelling pending the determination by the Court of any application made under subsection (12)
with respect to that interest.
(16) A spouse or domestic partner of an intestate estate may continue to reside in a dwelling in relation to which a spouse or domestic partner may make an application to the Court under subsection (12)
—
(a) until the period within which such an application may be made has expired; or
(b) if a person has by virtue of a mortgage or charge the right to enter into possession of the dwelling or to dispose of the interest—until that right is exercised,
whichever occurs first.
(17) The Court must not make an order providing for the acquisition of an interest in a dwelling by a spouse or domestic partner of the intestate unless satisfied that the acquisition is not likely to—
(a) substantially diminish the value of the assets in the estate of the intestate; or
(b) make disposal of the assets of the intestate estate substantially more difficult.