The choices that come from a difficult separation

March 08 2018

Losing a spouse or partner is very sad and difficult, and not a time most people want to have to make important legal decisions. Unfortunately, this is the time you have to decide between your entitlements under their will or potentially making a claim against their estate. Here are your options.

The law was changed in 2002 to treat the death of one spouse in a marriage or de facto relationship of more than three years as a separation. The general rule applied by the Matrimonial Property Act 1976 is to split property and assets down the middle.

The 2002 law changes now address the situation where one spouse or de facto partner dies leaving a surviving partner. Here, the division of property is treated the same way as the Property (Relationships) Act treats a separation.


The choice you have to make

The Property (Relationships) Act makes specific provisions about dividing property resulting from death. If you are the surviving spouse, you have to make the following decision within six months of probate being granted.

The choice is to make an application to the court for a division of relationship property, or to elect not to make an application and accept the wishes stated in the deceased partner’s will.

The first important point is that you will lose all gifts made in the will if you choose a court application. However, as part of your application to the courts, you can request a court order to have those gifts reinstated.

If you don’t make an application or decision one way or the other within six months from the date probate is granted, then the default view is that you have chosen to accept what you have been gifted under the will.


How this works in practice
  1. Bob and Sue have been married (or in a de facto relationship of more than three years). Bob has been married before and has children to his first wife. If Bob dies and leaves the bulk of his estate to Sue, she doesn’t need to consider making a court application. After six months, she will be considered to have accepted the gifts stated in the will anyway.
  2. If Bob leaves more than half his estate to the children of his first marriage, Sue would benefit from seeking advice about making a court application. This way she can get her share and also request the gifts Bob leaves her in his will to be reinstated.


Making provisions

Before you worry about what might be in your spouses will, it’s important to remember that death is quite different to a relationship breakdown. The deceased spouse has to make some provision for the support and maintenance of the surviving spouse. This is separate from making a PRA claim and applies only to the deceased spouse’s separate property.

Going back to our example, in the second situation Sue can claim half the relationship property and pursue a claim under the Family Protection Act 1955 for support and maintenance from Bob’s estate. For her claim, the court will consider what Sue received in Bob’s will and what she stands to receive from the relationship property. Other factors that are determined are competing claims, the length of Bob and Sue’s relationship, and if Bob has made other provisions for Sue through a family trust for example.


The decision

Before you decide what course of action to take, we advise you to talk to family law specialists such as ourselves. Obtain all the details about your deceased spouse’s assets and copies of relevant legal documents.

In particular, if you are thinking about making a court application, you’ll need a prescribed document to be prepared and signed. We’ll also supply you with a certificate stating we have explained the implications of the notice to you. These documents need to be lodged with administrator of the estate.


How long do you have to make a claim?

It’s normal for any claims against an estate to be subject to a time limit. If you act too late, it’s likely your legal rights will disappear. Also keep in mind that if an estate has been fully and finally distributed, it’s unlikely you’ll be able to make a belated PRA claim. If you are in this situation, or anticipate being in this situation, talk to our family law specialists before it’s too late.

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