On the death of a spouse or de facto partner, the surviving spouse has to make a choice as to their rights to relationship property. The spouse can choose to either:

  • Bring a relationship property claim against the estate to divide relationship property (option A); or
  • Accept the inheritance left to them under the deceased’s will (Option B).

If the surviving spouse or partner does not make a choice then by default they are deemed to accept their inheritance under the deceased’s will.

The surviving spouse or de facto partner has six months from their partner’s death, or the date of probate of the will, to make their choice (whichever is the later date).

In a recent case the surviving spouse failed to make her Option A election within the prescribed timeframe. Her late application to the Family Court to apply for more time to bring a claim, failed, as the estate had already been distributed to the beneficiaries. Her appeals to the High Court, and Court of Appeal both failed, and she was left with her default option B.

To be fully informed and to know what their rights are and where they stand it is wise for the surviving partner to see a lawyer who can explain what their relationship property entitlements are, so that the right decision can be made.  When making the choice, it has to be recorded in the right form, and then it must be certified by a lawyer. The notice of choice of the option is then sent to the estate’s executors.

This can be a difficult process during a stressful time, but it is important to take legal advice early to protect your rights.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.