If a person dies on or after 1st February 2002, their partner or spouse will be entitled to choose from two inheritance options. Under option A the survivor can apply for a division of the relationship property under the Property (Relationships) Amendment Act 2001 ("the Act").

Under this option all property owned by the deceased at the date of death will be deemedto be relationship property, regardless of how this property has been dealt with in the deceased's will. Under option B the surviving partner or spouse can elect to take the benefits he or she is entitled to under the will, or on intestacy (if there is no will). Very strict
time limits apply to the election. Please note that aspects of these changes may apply in certain cases where a spouse has died before 1st February 2002.

In some cases the surviving partner may be able to receive certain property under a will and apply for a division of relationship property. The surviving partner or spouse may also be able make a claim for a further share to the deceased's property under the Family Protection Act 1955 or the Law Reform (Testamentary Promises) Act 1949. It will be
essential for surviving partners or spouses to seek prompt legal advice to avoid missing out on their entitlement.

Other changes to inheritance rights

The new Property (Relationships) Amendment Act 2001 (" the Act") originally contained important, but less well known, amendments to several other acts. Shortly before the Act was passed, the amendments to the other acts were separated from the main Act. These other acts are briefly (and very broadly) discussed below.

Administration Amendment Act 2001 ("AAA")

The Administration Act 1969 states how a person's estate is to be distributed if they die without leaving a will. The AAA brings de facto relationships into line with existing provisions for legally married couples by providing that a de facto partner who is living in a
de facto relationship and whose partner dies on or after 1st February 2002 will have an entitlement to all, or part, of the dead partner's estate if there is no will (this is already the case for legally married partners). The proportion received by the surviving partner will, in
general, depend on whether the deceased is also survived by parents, or children, or other partners. If there are other de facto partners or a spouse, each will receive a share of the deceased's estate (it is likely to be irrelevant whether the partners knew of each other's existence). Normally the partners must have been in a de facto relationship for 3 years to take advantage of this provision, however it may apply sooner if there is a child of the relationship, or if the survivor made a substantial contribution to the relationship.

Receiving part, or all, of the deceased's estate under the AAA will depend on the survivor making an election to do so (see comments above).

Family Protection Amendment Act 2001 ("FP")

The Family Protection Act 1955 allows certain categories of people, including legally married spouses, to make a claim to an estate on the basis that the dead person breached their moral duty by not providing for them adequately in their will. The FP extends this right to de facto couples where one partner dies on or after 1 February 2002. Children of the
surviving partner may also have the right to make a claim under the FP if the dead partner did not provide adequately for them in their will.

Normally the partners must have been in a de facto relationship for 3 years to take advantage of this provision, however it can apply sooner if there is a child of the relationship, or if the survivor made a substantial contribution to the relationship.

This is a general summary only and should not be taken as a substitute for specific advice.

Kristina Andersen is an Auckland lawyer with a special interest in family law and
relationship issues.

Email: find@aucklandlawyer.co.nz
Web site: Kristina Andersen

May 2001