Where one spouse dies leaving a souse of defacto partner, the surviving spouse or defacto partner has two choices. They can choose to either:
(a) to apply for a division of relationship property under the Property (Relationships) Act 1976 (“the Act”); or
(b) take under their deceased partner’s will or the laws of intestacy.
This can be a very important choice for the surviving spouse or defacto partner if they have not been provided for in their deceased partner’s Will.
Option A has the effect of treating death like separation under the law. This means that all property jointly owned or acquired during the relationship will be treated as relationship property and therefore divided equally between the deceased spouse or partner’s estate and the surviving spouse or partner. For property to be divided equally, the deceased and the survivor must have been married or in a defacto relationship for a period longer than three years. Once this division has been completed, the Estate’s half share of the property will be distributed as per the deceased's Will.
If you have recently had a loved one pass, you should get in touch with us as soon as possible because there are strict requirements and timelines. There is a prescribed form that has to be completed and filed either at the High Court or with the administrators of the Estate.
If the survivor fails to file a notice of choice of option A in the correct form they are deemed to have chosen to take under the Will or the laws of intestacy if there is no Will. An option must be chosen within 6 months of the grant of probate otherwise you are, again, deemed to have chosen to take under the Will. Seeking to reverse this deemed choice can then become a very tedious and costly court process, with no guarantee of success. It is, therefore, advised that you come to see at your earliest opportunity.
If you do not make a choice within the time limit the administrators of an estate can distribute the estate. Once the estate is distributed, you will have no way of making a claim against the Estate.
In some circumstances the parties may have signed a contracting out agreement (or "Pre Nup") during their relationship which may restrict the survivor’s claim or right to choose option A.
Of course, each individual circumstance is different and we can provide you with advice more personal to your circumstances when you come to see us.