What the Statutory Legacy Is and Why It Exists

The statutory legacy is a guaranteed minimum payment to a surviving spouse or de facto partner when a person dies without a valid will in NSW. It sits within Chapter 4 of the Succession Act 2006 (NSW), the part of NSW law that deals with intestate estates.

Its purpose is to protect a surviving spouse where the deceased also leaves children from a previous relationship. Without this rule, the spouse and the children of an earlier relationship would simply split the estate, and the spouse might be left with too little to live on. The statutory legacy ensures the surviving partner receives a meaningful financial entitlement before the rest of the estate is divided.

The legacy is automatic. The legislature has set the formula. It applies regardless of the relationship between the spouse and the deceased’s children, the length of the relationship, or what the family thinks is fair.

When the Statutory Legacy Applies in NSW

The statutory legacy is only triggered in specific family circumstances. The Succession Act 2006 (NSW) sets the distribution rules across three different scenarios:

Spouse Only or Spouse With Mutual Children: No Statutory Legacy

If the deceased leaves a spouse but no children, the spouse takes the entire estate. The same rule applies if all of the deceased’s children are also children of the surviving spouse. In both cases, the statutory legacy does not arise because there is no competing class of beneficiaries.

Spouse With Children From Another Relationship: Statutory Legacy Applies

This is the trigger scenario. If the deceased leaves a spouse and has at least one child from a previous relationship, the spouse receives:

• All personal effects
• The statutory legacy
• One half of the remaining estate

The children from the other relationship share the other half equally between them.

No Surviving Spouse: Children Take the Estate

If there is no surviving spouse or de facto partner, the estate passes to the deceased’s children equally. The statutory legacy does not apply at all.

How Much Is the Statutory Legacy in NSW Right Now?

The base amount set by section 106 of the Succession Act 2006 (NSW) is $350,000. That figure has not changed since the section was introduced. What has changed is the amount actually paid, because the legacy is CPI-adjusted each quarter.

As at the most recent CPI indexation, the statutory legacy in NSW is approximately $611,387, effective from late April 2026, based on the January to March 2026 CPI quarter. The figure is recalculated each quarter using the ABS Consumer Price Index, so it changes regularly. The amount that applies to a particular estate is the figure in force at the date of death.

In late 2025, the ABS re-referenced the CPI series. The re-referenced December 2005 quarter figure, which sits in the formula’s denominator, is now 58.22, replacing the previously published 83.8. The calculated amount remains mathematically consistent. Any executor or administrator should obtain a current statement of the relevant CPI figures from a probate lawyer before paying out a statutory legacy.

The Statutory Legacy Formula Under Section 106

Section 106 of the Succession Act 2006 (NSW) sets out a specific formula:

R = A × (C ÷ D)

Where:

• R is the CPI-adjusted statutory legacy
• A is the base amount of $350,000
• C is the CPI for the last quarter published before the date of death
• D is the CPI for the December 2005 quarter

The formula keeps the spouse’s minimum entitlement in step with the cost of living. It also means the longer it has been since 2005, the higher the statutory legacy becomes. Two intestate estates with identical asset values can produce different distributions if the deaths fall in different CPI quarters.

How the Estate Is Distributed When the Statutory Legacy Applies

Take a practical example. Assume the deceased leaves a spouse and two adult children from a previous marriage, and the net estate after debts and administration costs is $1 million. The distribution under Chapter 4 of the Succession Act 2006 (NSW) would be:

• Spouse: all personal and household effects, plus the statutory legacy of approximately $611,387, plus 50% of the remainder ($194,306)
• Children from previous relationship: 50% of the remainder, shared equally, being $97,153 each

If the estate is smaller, say $650,000, the spouse may take everything essentially after personal effects, leaving nothing for the children. This is the “small estate” problem that intestate blended families regularly run into. In those cases, the children’s only realistic remedy is a family provision claim under Chapter 3 of the Act.

When There Is More Than One Spouse

NSW law recognises that a person can leave more than one spouse at the time of death. This happens, for example, where a person is separated but not divorced and is also living in a de facto relationship.

In that situation, the surviving spouses share the spouse’s entitlement (including the statutory legacy and the personal effects). The Succession Act 2006 (NSW) sets out three options: a written agreement between the spouses, a court order, or equal division of the spouse’s share between them.

Interest on Unpaid Statutory Legacy

If the statutory legacy is not fully paid within one year of the date of death, the surviving spouse is entitled to interest on the outstanding amount. The interest runs from the first anniversary of the death until the legacy is paid in full.

This is a meaningful protection for spouses where estate administration is delayed by disputed assets, contested wills, or property that takes time to sell. It also creates an incentive for administrators to act efficiently.

How to Apply for Letters of Administration in NSW

If a person dies intestate in NSW, the surviving spouse or next of kin must apply to the Supreme Court of NSW for letters of administration. A grant of letters of administration gives the applicant authority to collect the estate’s assets, pay debts, and distribute the estate under the intestacy rules.

The order of priority for who can apply is:

• Surviving spouse or de facto partner
• Adult children
• Parents, then siblings, then more distant relatives

The applicant lodges UCPR Form 111 with affidavit evidence about the deceased, the assets and liabilities, and the family circumstances. Detailed information on the broader intestacy framework is set out in our guide to dying without a will in NSW.

How a Specialist NSW Probate Lawyer Helps With Intestate Estates

Intestate estates are technically simpler than contested probate matters, but they are operationally more complex than many families expect. The administrator has no will to work from; every distribution must follow the legislative formula precisely, and miscalculating the statutory legacy can produce personal liability for the administrator.

Our team at Empower Probate Lawyers focuses exclusively on probate, estate administration, and will disputes. Our director, Oliver Morrisey, holds a Master of Laws in Wills and Estates (High Distinction) and has acted in many intestate matters across NSW. We help families:

• Calculate the statutory legacy correctly using the current CPI-adjusted figure for the date of death
• Apply for letters of administration through the Supreme Court of NSW
• Identify all beneficiaries entitled under the Chapter 4 distribution rules
• Manage blended family complexities, including children from previous relationships
• Advice on a family provision claim where the statutory distribution produces a harsh result

Succession planning is one of the most effective ways to avoid these issues entirely.

Get Help With an Intestate Estate in NSW

If a family member has died without a will and you need clarity on the spouse’s statutory legacy and how the estate will be distributed, call Empower Probate Lawyers on 1300 481 161. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.

Frequently Asked Questions

How much is the statutory legacy in NSW in 2026?

As at the CPI indexation effective from late April 2026, the statutory legacy is approximately $611,387. The figure is recalculated each quarter based on the ABS Consumer Price Index, so the precise amount depends on the date of death.

Does the statutory legacy apply to de facto partners?

Yes. The Succession Act 2006 (NSW) treats de facto partners and married spouses the same way for intestacy purposes, provided the de facto relationship meets the statutory requirements at the time of death.

What happens if the estate is smaller than the statutory legacy?

The spouse receives whatever is left after personal effects. The children from a previous relationship receive nothing under the intestacy rules. Their only legal remedy is to apply for a family provision order under Chapter 3 of the Succession Act 2006 (NSW).

Can the statutory legacy be challenged?

The statutory legacy itself cannot be challenged because it is set by legislation. However, the distribution as a whole can be challenged through a family provision claim by an eligible person who has not received adequate provision.

Is the statutory legacy paid before or after debts?

After debts, section 103 of the Succession Act 2006 (NSW) requires all funeral expenses, administration costs, debts, and liabilities to be paid first. The statutory legacy is calculated against the net distributable estate.

How long does it take to pay out a statutory legacy?

The Succession Act gives the administrator one year from the date of death before interest starts running on the unpaid amount. Most well-administered estates pay the legacy within that period.