When a partner passes away, the state of your relationship property is usually far from your mind. If that partner has a Will then it is often assumed that it contains the last word on the distribution of their estate.

However, if you are in a qualifying relationship (living together for at least three years) then you are entitled to choose whether you wish to inherit under your partner’s Will, or apply to the Family Court for a division of your relationship property.

Now why would I want to go to all that effort, you may ask?

Relationship property law is based on the presumption that each party contributes to a relationship with the concept of equal sharing. Unless they have a contract which states otherwise, parties are usually entitled to half of the total relationship property pool upon separation or death.

In some cases, what your partner leaves you in their Will may be quite different to what you are legally entitled to under the Property (Relationships) Act. If this is the case, you may wish to elect to apply for a division of relationship property through the Family Court, rather than the default position of inheriting under their Will.  The following example may clarify why someone might choose this option:

Mary and John had been married for 10 years when John tragically passed away. Mary knew that John had his affairs in order as he had drafted a Will just the year prior.

Upon examining his Will, Mary found that John had left her a gift of $10,000 along with the household chattels and had left the residue of his estate to his children from a previous marriage. His estate consisted of the parties’ family home, his personal bank account, his boat and his car.  Unfortunately, the family home was only in John’s name, so Mary didn’t inherit it automatically by survivorship.

On approaching her solicitor, Mary was advised that she had two options:

A.     Apply for a division of relationship property in the Family Court; or

B.     Not apply and inherit as stipulated in John’s Will.

Mary wrestled with this decision as she did not want to appear greedy and she knew John’s children might not be happy if she applied for a division of their relationship property. However, Mary was advised that she was legally entitled to half of the the total value of their relationship property which would mean she could be in a significantly different position financially.

The Relationship property pool was made up of:

1.     The family home - mortgage free and valued at $800,000;

2.     $100,000 cash in John’s separate bank account;

3.     John’s boat valued at $15,000

4.     John’s car valued at $18,000 and

5.     Mary’s car valued at $12,000.

6.     $500 in Mary’s separate bank account;

Total value of relationship property pool: $945,500. 

If Mary was to choose to inherit under the Will she would retain $22,500 of the total value, however if she applied for a division of relationship property she could be entitled to $472,750 as her half share.

As this example shows, your position under the Property (Relationships) Act may be quite different to your position under your partner’s Will. If you wish to explore this further we suggest you consult your lawyer for tailored legal advice.