If a marriage, civil union or de facto relationship ends upon death **, the surviving spouse or partner can choose either:
- To take what they receive under the deceased’s Will; or
- To make a claim to the Court for the division of relationship property.
If a claim is made for the division of relationship property, then the general rule of equal sharing of relationship property will usually apply (subject to any exceptions). However if there is a Contracting Out (or Pre-Nuptial) Agreement which continues to apply in the event of death, this will usually override the general rules. See 10 Point Guide to Contracting Out Agreements (Pre-Nups) for further information.
In the event a husband dies and does not provide for his wife in his Will (or provides minimally for her), the surviving wife would need to consider whether to make a claim for division of relationship property. This situation can commonly occur where the husband has children from a previous relationship and leaves his estate to them, rather than the surviving wife. If the couple had relationship property assets, the wife may well be better making a claim. The outcome can differ considerably depending on which option is taken, so it is important to get expert legal advice. Your lawyer can help you weigh up your financial entitlements under each option before you make a decision. See Contesting Estates for further information.
There is a time limit of six months for making the choice, counted from the date of probate (if there is a Will) or date of death (if there is not a Will). Making the choice is a formal process for which legal advice should be obtained. If no choice is formally registered within the timeframe, then the survivor is deemed to have taken what they receive under the Will.
If you would like any further advice or assistance, please do not hesitate to contact our Wellington based family lawyers Debbie Dunbar, email email@example.com, phone (04) 495 9940or Maretta Twentyman, email firstname.lastname@example.org, phone (04) 495 8918.
** Spouses have the right to make that choice no matter how long their marriage or civil union lasted. De facto partners can generally only make that choice if their relationship endured for three years or more. However, the Court can allow that choice to be made where the de facto relationship was one of short duration (less than three years), if there is a child of the relationship or the surviving partner made a substantial contribution to the relationship.
Further information can be found here: