sec.36Distribution of entitlement if more than 1 spouse

### sec.36 Distribution of entitlement if more than 1 spouse 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 between them— in accordance with a written agreement between the spouses about distributing the entitlement between them (a distribution agreement ); or in accordance with an order made under this section distributing the entitlement between the spouses (a distribution order ); or in equal shares as decided by the personal representative, if, at the time of distribution— the spouses have been given a notice under subsection (3) and 3 months have passed since the last of the notices was given; and the personal representative has no notice of a distribution agreement; and the personal representative— has no notice of an application for a distribution order; or 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 has a copy of an order of the court striking out or discontinuing an application for a distribution order. 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. 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— enter 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. If 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. An intestate’s spouse or personal representative may apply to the court for a distribution order. 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) . The court may order that the entitlement be distributed in the way it considers is just and equitable. 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. A distribution order may include conditions. 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 distribution. 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) . s 36 sub 1997 No. 54 s 9 amd 2002 No. 74 s 90 sch (sec.36-ssec.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 between them— in accordance with a written agreement between the spouses about distributing the entitlement between them (a distribution agreement ); or in accordance with an order made under this section distributing the entitlement between the spouses (a distribution order ); or in equal shares as decided by the personal representative, if, at the time of distribution— the spouses have been given a notice under subsection (3) and 3 months have passed since the last of the notices was given; and the personal representative has no notice of a distribution agreement; and the personal representative— has no notice of an application for a distribution order; or 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 has a copy of an order of the court striking out or discontinuing an application for a distribution order. (sec.36-ssec.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. (sec.36-ssec.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— enter 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. (sec.36-ssec.4) If 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. (sec.36-ssec.5) An intestate’s spouse or personal representative may apply to the court for a distribution order. (sec.36-ssec.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) . (sec.36-ssec.7) The court may order that the entitlement be distributed in the way it considers is just and equitable. (sec.36-ssec.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. (sec.36-ssec.9) If the court considers it is just and equitable, it may order that an entitlement be distributed solely to 1 of the spouses. (sec.36-ssec.10) A distribution order may include conditions. (sec.36-ssec.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 distribution. (sec.36-ssec.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) . - (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— (A) has 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 distribution order. - (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— (A) has 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 distribution order. - (A) has 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 distribution order. - (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— (A) has 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 distribution order. - (A) has 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 distribution order. - (A) has 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 distribution order. - (a) enter into a written agreement about distributing the entitlement between them and give the personal representative written notice of the agreement; or - (b) apply to the court for an order distributing the entitlement between them and give the personal representative written notice of the application.