Relationship property and intestacy

In a recent case, a person had died intestate (without a Will), leaving his partner and his mother feuding over the distribution of property owned at his death.

Although not the main focus of its decision, the Court reminded us of the interface between Relationship Property and Estate laws.

Where one partner to a relationship dies, in the first instance the surviving partner has a choice as to whether they make an application under the Property (Relationships) Act or whether they take what they are given in the deceased’s Will.  The choice must be made within certain time frames.

In this particular case, the partner chose not to apply under the Act which meant (because they were not married and the deceased had no Will) that property owned in joint names with the deceased passed to her by ‘survivorship’.

The property owned by the deceased in his sole name, passed to his estate and under our law was to be distributed to his parents.  As most of the assets were owned jointly by the couple, the partner took the lion’s share of the deceased’s property.

The law does allow for other outcomes, including the partner taking a share of the deceased’s estate; or the estate taking a share of the property in joint names.  Whether these remedies are available will depend on the particular facts.

The risk of Court proceedings such as these can be minimised by having an up-to-date Will.  Another step you can take to reduce risk, is entering a Contracting Out Agreement – one of the provisions of which can relate to the choice that each partner will make in the event of the death of the other.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.