When a partner passes away, de facto partners in New Zealand have significant legal rights that can override the wishes expressed in a will. Understanding these rights is essential for protecting your interests during what is already a difficult time. This article explores the legal protections available to de facto partners when challenging will provisions and how New Zealand law recognises your contributions to the relationship.
Legal Recognition of De Facto Relationships in New Zealand
The Property (Relationships) Act 1976 treats de facto partners similarly to married couples when it comes to property division, whether the relationship ends through separation or death. This law recognises that partners contribute equally to their relationship in different ways, and these contributions deserve legal protection.
For a de facto relationship to be covered under the Act, both partners must be over 18 years old and living together as a couple without being married or in a civil union. The court considers various factors when determining whether a de facto relationship exists, including the duration of the relationship, the level of financial interdependence, whether you own property together, your mutual commitment to a shared life, whether you care for children together, and how friends and family perceive your relationship.
Generally, the Act applies automatically to de facto relationships that have lasted at least three years. However, shorter relationships may also qualify if there is a child of the relationship or if one partner has made a significant contribution and it would cause serious injustice not to recognise the relationship.
Rights Under the Property (Relationships) Act When Your Partner Dies
When your de facto partner passes away, you have two distinct options regarding property division. A surviving de facto partner can choose either to claim a half share of relationship property under the Property (Relationships) Act or to accept what they have been left in their partner’s will or, if there is no will, the set share that the Administration Act would provide. This choice must be made within six months of probate being granted, and if no choice is made, you are assumed to have accepted what is in the will.
Relationship property typically includes the family home regardless of who purchased it or when, family chattels, income earned during the relationship, KiwiSaver accounts, vehicles, bank accounts, and any property acquired during the relationship. The family home is always considered relationship property, even if your partner owned it before the relationship began, unless it is classed as separate property under a relationship property agreement.
If you choose to claim under the Property (Relationships) Act, you will generally be entitled to an equal share of all relationship property. However, this usually means you will lose any gifts left to you under the will. You can ask the court to reinstate those gifts as part of your application, but this is at the court’s discretion. If you accept what is left in the will instead, you keep those gifts but cannot later make a claim for an equal division of relationship property.
For de facto relationships of less than three years, different rules apply. De facto partners in a relationship of short duration can make a claim on death only if there is a child of the relationship or the surviving partner has made a significant contribution to the relationship and it would cause serious injustice not to allow them to claim. In these cases, property would be divided according to contributions to the relationship rather than on an equal sharing basis.
Challenging a Will Through the Family Protection Act
Beyond the Property (Relationships) Act, de facto partners also have the right to challenge a will if they believe inadequate provision has been made for their maintenance and support. An application under the Family Protection Act 1955 can be made by a de facto partner who was living in a de facto relationship with the person at the time of their death.
A de facto partner must either have been living with the deceased three years prior to the deceased’s death in order to qualify unless the court is satisfied that there is a child of the de facto relationship or the de facto partner has made a substantial contribution to the de facto relationship and the failure to make an order would result in serious injustice to the de facto partner.
The Family Protection Act provides that if adequate provision is not available from the deceased’s estate for the proper maintenance and support of eligible claimants, the court may, at its discretion, order that any provision it thinks fit be made out of the deceased estate. The term “proper maintenance and support” has been interpreted broadly by New Zealand courts and goes beyond just basic living expenses.
The court considers numerous factors when assessing claims under the Family Protection Act. These include the size of the estate, the length of your relationship with the deceased, your financial position and needs, the contributions you made to the relationship (both financial and non-financial), any competing claims from other family members, the deceased’s responsibilities to you, and any promises made during their lifetime. The court also examines whether you gave up career opportunities or earning potential to support your partner or care for children, as these sacrifices are recognised as significant contributions.
It is important to note that a claim under the Family Protection Act is separate from a claim under the Property (Relationships) Act. You can pursue both claims simultaneously. For example, you could claim your half share of relationship property and also seek additional provision for your maintenance and support from your partner’s separate property.
Time Limits for Making a Claim
Time limits are strict when challenging will provisions. Claims under the Family Protection Act and other succession law claims must generally be filed within 12 months of probate being granted. For claims under the Property (Relationships) Act, you must make your choice between accepting the will or claiming relationship property within six months of probate being granted.
Extensions to these time limits may be possible in certain circumstances, but they are at the court’s discretion and require a strong justification. Missing these deadlines can mean losing your right to make a claim entirely, which is why it is essential to seek legal advice as soon as possible after your partner’s death.
Important Considerations When Asserting Your Rights
Before making a claim, you should carefully evaluate whether choosing relationship property division or accepting the will provisions will better serve your interests. This decision depends on the value of the relationship property compared to what you would receive under the will, whether there are competing claims from children or other family members, your ongoing financial needs and ability to support yourself, and whether your partner had significant separate property that could be the subject of a Family Protection Act claim.
The decision between these options is not always straightforward. In some cases, accepting the will may be more beneficial, particularly if your partner left you a generous bequest and there is limited relationship property to divide. In other situations, claiming your half share of relationship property may provide better financial security, especially if the will left most of the estate to other beneficiaries.
You should also consider the existence of any contracting out agreements. If you and your partner signed an agreement determining how property would be divided on death, this may affect your rights. However, such agreements can sometimes be challenged if they were made under duress, because of a mistake, or if circumstances have changed significantly since they were signed.
The potential costs of litigation should also be considered. Court proceedings can be expensive, although courts have discretion to award costs from the estate in appropriate cases. Mediation or negotiation with other beneficiaries may provide a more cost-effective solution, but this requires careful handling to ensure your rights are protected.
How Different Types of Property Are Treated
Understanding what constitutes relationship property versus separate property is crucial when asserting your rights. Relationship property includes assets acquired during the relationship, income and wages earned during the relationship, and the family home and chattels regardless of when they were acquired or who owned them originally. Separate property, on the other hand, includes property owned before the relationship began (except the family home), inheritances and gifts received by one partner that were kept separate, and property designated as separate under a contracting out agreement.
However, separate property can become relationship property if it is used for the benefit of both partners or becomes intermingled with relationship assets. For instance, if your partner inherited money during the relationship and used it to renovate the family home, that inheritance may lose its character as separate property.
The Role of Children in Will Disputes
The presence of children can significantly impact your rights as a de facto partner in will disputes. Children of the relationship strengthen your claim under both the Property (Relationships) Act and the Family Protection Act. For shorter de facto relationships (under three years), having a child together may be essential to establishing your right to make a claim at all.
If your partner had children from a previous relationship, this can create competing claims on the estate. The court must balance your needs for maintenance and support against the claims of children and other dependants. Each case is assessed on its individual circumstances, with the court considering the moral obligations the deceased owed to all potential claimants.
Strengthening Your Position
Several steps can help strengthen your position when asserting your rights as a de facto partner. Maintaining clear records of the relationship is valuable, including evidence of financial contributions, joint ownership of assets, shared living arrangements, and your care responsibilities. Evidence that you gave up career opportunities to support your partner or care for children is particularly important, as courts recognise these sacrifices when assessing claims.
Demonstrating the length and nature of your commitment to your partner also matters. Evidence of a genuine domestic partnership, where you lived together as a couple and made joint decisions about your lives, supports your claim. This might include joint bank accounts, shared utility bills, correspondence addressed to both of you, and testimony from friends and family about how they viewed your relationship.
If your partner made promises to provide for you after their death, documenting these promises can be important. Whilst verbal promises can be recognised under the Law Reform (Testamentary Promises) Act 1949, written evidence is always more persuasive. This might include letters, emails, or statements to third parties about your partner’s intentions.
Managing Complex Family Dynamics
Will disputes involving de facto partners often involve complex family dynamics, particularly when there are children from previous relationships or other family members who expected to inherit. These situations require sensitive handling to protect your rights whilst managing difficult relationships during an emotionally challenging time.
Some families may not have accepted your relationship with the deceased or may believe that legal spouses or children should have priority over de facto partners. However, New Zealand law clearly recognises the rights of de facto partners who meet the qualifying criteria, and these rights cannot simply be ignored because of family preferences or expectations.
Early legal advice can help you understand your position and develop a strategy for asserting your rights effectively. In many cases, negotiation and mediation can resolve disputes without the need for court proceedings, which can be both less expensive and less emotionally draining for everyone involved.
Need Help With De Facto Partner Rights in Will Disputes?
Will disputes as a de facto partner can be legally complex and emotionally challenging, particularly during the difficult period following your partner’s death. Understanding your rights and the time limits for making claims is essential to protecting your interests. As both family law and will lawyers in Auckland, we can help you with will disputes and relationship property matters. Contact Evolution Lawyers team today to discuss your situation and understand your options for asserting your rights as a de facto partner.