Relationship Property – what happens when your spouse or partner dies?

July 4, 2013

in Family & Relationship Property

iStock_000017754761SmallYou may not have given any thought to dividing your property after your spouse or de facto partner dies, but you need to be aware that under the Property(Relationships) Act 1976 (“the Act”) as a surviving spouse or de facto partner you have a choice between two options for division of property when your spouse or partner dies. The first option gives you the ability to apply for a division of the relationship property under the Act whereas the second option is to rely upon the provisions of your deceased spouse or partner’s Will rather than the Act.  If you have entered into what is commonly known as a Property Sharing Agreement, during the course of your relationship, then this may also have implications on what election you can make following the death of your partner and you need to seek legal advice so you are clear on your entitlements.

Choosing one of the options is a formal process that must be made by completing and signing a written notice and your lawyer needs to assist you with this and certify the documentation.  You also need to be aware that there are important time limits that apply to the election of your option.

Generally speaking, choosing to divide your property under the Act means the equal sharing regime applies and that your lawful entitlement takes priority over the terms of your spouse or partner’s Will and you do not receive what has been provided for you under the terms of their Will.   However under the second option you elect to inherit any provisions made in your deceased partner’s Will and the equal division principles of the Act do not apply.

The election of either option can result in vastly different outcomes and therefore it is crucial that you obtain proper legal advice about this election and the timeframes that apply as early as possible.

If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co who normally advises you, or alternatively contact:

Kirsten Maclean

03 477 8870 or 09 379 0055


The information contained in this publication is intended as a guide only.  It does not constitute legal advice and should not be relied upon as such.  Professional advice should be sought before applying any of the information to particular circumstances.  While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain. 

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