Happily living in a home which is your partner’s separate property … but can you keep living there if your partner dies?

Contracting Out Agreements (previously known as pre-nuptials) are a lot more common in today’s world. But what effect do they have if your partner dies? Are you aware what rights you would have to the home you presently live in – would you be able to continue living there or not?

Michael and Emma were in a relationship for two years when Emma decided she would like to protect the home they lived in as her separate property. Emma had owned the home for three years prior to them living together. Michael thought that was fair enough, and they signed a Contracting Out Agreement.

Twelve years later, Emma died suddenly. Emma’s Will left all her property to her adult children from a previous relationship and made no provision for Michael. He had to move out of the home.

Michael was perplexed. They had talked about what would happen if either of them died and Emma had always said he would be able to “retain the home”. However, Emma had not realised she needed to update her Will to give effect to her intentions, and the terms of their Contracting Out Agreement meant that was not the case, and Michael was prevented from making a claim.

What rights you may have in a similar situation will depend on the terms of your Agreement and also on your partner’s Will.

So, how do you protect yourself? Ensure that you and your partner understand the provisions of your Contracting Out Agreement (if you have one) and your Wills. Do they accurately reflect your wishes? Are any children you have provided for?

If circumstances have changed you may need to update your Wills or Agreement.

As difficult as it may be we recommend having the conversation with your partner – it is far better to discuss the matter now while you both can!

If you would like to further discuss your situation, please contact us on (04) 473 6850.