When someone in NSW dies without a will and leaves behind both a partner and children from a different relationship, the surviving spouse or de facto partner doesn’t just split the estate down the middle. They first receive a set sum called the statutory legacy. For deaths on or after 30 April 2026, that sum is $611,387.84. The entitlement comes from section 106 of the Succession Act 2006 (NSW), and the figure is reset every quarter so that inflation doesn’t quietly erode what the surviving partner is owed.

That’s the short version. The detail is where it gets practical: when the legacy actually applies, how the amount is worked out, what happens if the estate can’t cover it, and what the spouse is owed if it’s paid late.

What does “statutory legacy” mean?

Strip away the legal label, and the statutory legacy is really a priority payment. Before an intestate estate gets carved up among everyone with a claim, the surviving spouse or de facto partner takes this fixed amount off the top.

Whether it applies at all comes down to who the deceased left behind. The legacy only becomes relevant where there’s a surviving partner and at least one child who isn’t also that partner’s child. Second marriages are the obvious case. So it is a relationship where one person already has children with someone else. In those families, the law moves to protect the survivor’s financial position rather than leaving them to share everything equally with the deceased’s other children.

That third scenario, where stepchildren or half-relations sit alongside a current partner, is also where estates tend to turn contentious. The surviving partner and the deceased’s other children often walk in with very different assumptions about what the estate is worth and how it should be divided.

You’ll occasionally see this entitlement called a spousal legacy. It’s the same provision under a more everyday name: the spouse’s statutory legacy set out in section 106.

When does the spouse’s statutory legacy apply?

The trigger is the family structure the deceased leaves behind. Under the intestacy rules in the Succession Act 2006 (NSW), the position works like this:

• Spouse, no children. The spouse takes the whole estate. The statutory legacy never comes into play.
• Spouse and children of that same relationship only. The spouse still takes the whole estate. Again, the legacy is irrelevant.
• Spouse and children from a different relationship. Now the statutory legacy applies. The spouse receives the deceased’s personal effects, the statutory legacy, and one-half of whatever remains. The other half is shared equally among the children.

That third scenario is the whole point of the provision. It is also where most disputes start, because the children from the earlier relationship and the surviving partner often have very different expectations about the size of the estate.

How much is the statutory legacy in NSW?

The current statutory legacy is $611,387.84 for deaths on or after 30 April 2026. Unlike a flat cash gift written into a will, this amount doesn’t sit still. It tracks inflation and gets recalculated each quarter, so a death in 2024 attracts a noticeably different figure from a death this year.

The recent amounts, by date of death:

Date of death	NSW statutory legacy amount
30 Apr 2026 – 29 Jul 2026	$611,387.84
29 Jan 2026 – 29 Apr 2026	$603,091.72
30 Oct 2025 – 28 Jan 2026	$599,761.34
31 Jul 2025 – 29 Oct 2025	$591,825.78

The date of death sets the figure. Administration can drag on for months, but the amount that applies is always the one in force on the day the person died. A partner who passed away in October 2025 attracts the October 2025 statutory legacy even if the estate is only being sorted out now.

If you’d rather not work through the formula yourself, the statutory legacy calculator for NSW further down this page returns the figure for any date of death you enter. Treat it as a guide, and have the number confirmed by a probate lawyer before it’s relied on in an estate.

How is the statutory legacy calculated?

Section 106 sets out a formula. It looks like algebra, but it’s doing something simple: taking a base amount from 2005 and adjusting it for inflation up to the date of death.

R = A × (C ÷ D)

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

Worked through for a death on or after 30 April 2026:

The most recent CPI figure published was for the January to March 2026 quarter, released by the Australian Bureau of Statistics on 29 April 2026, at 101.7. On the current reference basis, the December 2005 quarter figure is 58.22.

R = $350,000 × (101.7 ÷ 58.22) = $611,387.84.

One point is worth flagging if you go looking for older calculations. In late 2025, the ABS re-referenced its quarterly CPI series, which changed the index numbers themselves, though not the result, once you match the right figures together. An example written before that change might show very different-looking numbers (a December 2005 figure of 83.8, say, and a CPI in the 140s) and still land on the correct legacy for its date. The legislation continues to use the last quarterly CPI published before the death, so the quarterly figure on the correct reference basis is the one to apply.

A worked example

Picture a net estate of $1,000,000, calculated after debts, the funeral and administration costs are paid, where the deceased died on 6 May 2026, leaving a spouse and two adult children from an earlier relationship.

The spouse takes the personal effects first, followed by the statutory legacy of $611,387.84. That leaves $388,612.16 in the estate. Half of that balance goes to the spouse, which is $194,306.08, and the two children split the remaining half between them, so $97,153.04 each. Had those same two children also been the spouse’s children, none of this would apply, and the spouse would have inherited the entire $1,000,000.

What if the legacy is paid late? 

Interest on an unpaid statutory legacy

If the statutory legacy isn’t paid in full within one year of the death, the spouse is entitled to interest on the outstanding amount. This sits in section 106 too, and it’s frequently overlooked.

The interest runs from the first anniversary of the death until the legacy is paid in full. The rate, which the Act calls the “relevant rate,” sits 2% above the cash rate last published by the Reserve Bank of Australia before 1 January of the year the interest starts to accrue.

Put plainly, an executor or administrator who delays distribution past the twelve-month mark isn’t simply holding the spouse’s money. The amount owing grows. To illustrate the mechanism, if the relevant RBA cash rate were, say, 3.6%, the interest rate on the unpaid legacy would be 5.6% on the outstanding balance from the first anniversary onwards. The actual rate depends on the cash rate at the relevant time, but the principle holds. Late payment has a cost, and it favours the spouse.

For administrators, this is a reason to prioritise the legacy. For spouses, it’s a quiet but real protection if an estate stalls.

What if the estate is too small? 

Abatement explained

This is the question people rarely think to ask until it lands on them. What happens when the estate is worth less than the statutory legacy?

The answer is abatement. Where an estate isn’t large enough to pay the legacy in full, the legacy “abates,” meaning it reduces to the extent necessary. In practice, the spouse takes whatever the estate holds, and there’s nothing left for the children.

An example makes it concrete. Suppose the net estate is worth $400,000 and the statutory legacy for the date of death is $611,387.84. The spouse doesn’t receive the full legacy because the money isn’t there. The legacy abates down to the value of the estate, so the spouse takes the entire $400,000 (along with the personal effects), and the children from the other relationship receive nothing.

So “abates” simply means the entitlement shrinks to fit what’s available. If more than one statutory legacy is payable, which is possible where the deceased left more than one spouse, those legacies abate proportionally against each other.

It’s an uncomfortable result for children expecting a share. It’s also exactly what the legislation intends, since the surviving partner’s security comes first.

Why this matters

Three groups need to understand the statutory legacy on an intestate estate, for different reasons.

Administrators must calculate and pay the correct amount before distributing anything else. Get the date of death wrong, or miss the interest provision, and the distribution is exposed.

Surviving spouses and de facto partners are entitled to know their minimum position under NSW law, particularly in a blended family, where the estate may be smaller than assumed once a Sydney mortgage and other debts are cleared.

Children and other beneficiaries benefit from a realistic expectation early. Where the estate is modest, abatement can mean their share is small or nonexistent, and it’s better to know that at the start than to learn it at the end.

Intestacy turns the law into the will the deceased never wrote. The statutory legacy is one of its sharpest edges, because it can shift the bulk of an estate to one person before anyone else sees a cent.

Speak to our estate and probate team

Intestate estates rarely divide as neatly as the formula suggests, especially in blended families where the numbers are close to the legacy threshold. If you are administering an estate, or you are a spouse or beneficiary trying to understand where you stand, our estate and probate lawyers can work through the entitlements with you.

Book a confidential consultation to talk through your situation.

This article is general information about the law in NSW and isn’t legal advice. Every estate turns on its own facts, so please speak with a lawyer about your circumstances.