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Legal Articles


The Survivor's Choice - Relationship Property after Death


Almost everyone is aware that in 2001 the law changed to give statutory property rights to de facto partners. The knowledge that property is generally shared equally after a couple has lived together for three years has been ground into our collective consciousness. However, very little publicity has been given to the significant changes the amendments to the Property (Relationships) Act 1976 makes to the administration of deceased estates.


Before the law changes in 2001 we had seen several decades of social change with de facto relationships becoming very common, many people marrying more than once and the creation of instant melded families. This led to changes in will drafting. The once standard will of “all to each other and then to the kids” became less appropriate. Instead wills were being made for “each other, his kids, her kids and our kids.” Generally the will makers believed they had a clear understanding of the ownership status of their jointly or separately held property. Some of these assumptions may no longer be valid and any couple whose will predates the 2001 law changes would be well advised to have their wills reviewed.


One of the most significant law changes is found in section 61 of the Property (Relationships) Act 1976. A surviving spouse or de facto partner is now required to make a statutory choice whether to accept the provisions contained in the will of their deceased partner (or the standard provisions on an intestacy found in the Administration Act 1969), or to seek a division under the Property (Relationships) Act 2001. In other words, if a survivor thinks that more will be received by getting the Family Court to award one half (usually) of all the couple’s relationship property instead of accepting the provisions in the will, they may bring a court action. This provides another example of where a will can be over ruled by the Court, in addition to the grounds available under The Family Protection Act and the other legislation mentioned in my last column. These days your will is anything but sacrosanct in the eyes of the law.


There are a number of formalities required for making this statutory election. Depending on the size of the estate, the surviving spouse or de facto partner is given six months from either the date of death, or grant of administration by the Court, to make the choice. Accordingly, if other beneficiaries named in the will are anxious to receive their inheritances and the surviving spouse or de facto partner decides to take the full six months to make a decision, there is little they can do but wait. If at the end of six months the survivor elects to seek a court ordered solution, it may be a long time before the other beneficiaries receive anything or even find out if they will still receive their legacies at all. In some cases there will be protracted and complicated litigation. If there is any dispute as to whether a survivor making a claim was a de facto partner as opposed, to say, just being a friend of the deceased that issue will need to be litigated first.


The choice made by the surviving spouse or de facto partner must be in writing and on the prescribed form. A lawyer has to certify that the effects and implications of the notice have been explained. A copy of the notice will often have to be lodged in the High Court probate registry. The giving of the lawyer’s certificate is much more than a mere formality. The surviving spouse or de facto partner must be placed in a position to make a fully informed choice as to the pros and cons of the election. The lawyer giving the advice will need to be well acquainted with the client’s family history, any legal agreements that were in existence and have full details of all the possible assets of the deceased and the survivor. The legal and personal implications of the election are such that often it will not be the type of decision a grieving survivor should be expected to make too soon after the death of a loved one.


Lawyers are often criticised for the time it takes to administer deceased estates.

As the 2001 legislation states that estates cannot be administered or property disposed of before either the statutory election has been properly made or six months have elapsed after the grant of administration, expect greater delays than in the past. Also, due to the extra work and responsibility caused by the legislation, legal charges are likely to increase. Before you reach for the telephone to give your solicitor a blast, just remember that it is politicians who pass these laws, not hardworking lawyers.



Disclaimer: The information contained in this article is of a general and summarised nature only. It should not be used as a substitute for obtaining personal legal advice.


© Terry Carson 2008

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