Dividing Relationship Property after Death
Alex McDonald | Relationship Property Barrister
What can I do if my spouse or partner has died leaving a will that leaves me with nothing or doesn’t adequately provide for me?
The most important thing to know here is that the Property (Relationships) Act 1976 (PRA) gives you two choice options (Option A and Option B) for how your relationship property is divided.
Choosing Option B gives you the right to take what has been left to you in your partner’s will but means that you cannot make a claim under the 50/50 equal sharing regime provided for under the PRA.
However, if you choose Option B, and you and your partner were married, you can also make a ‘top up’ application for further provision from your spouse’s estate under the Family Protection Act 1955. If you and your partner were not married you can still make a claim under the Family Protection Act 1955 so long as you and your partner were living together in a de facto relationship when your partner died and your relationship lasted for more than 3 years.
If your de facto relationship lasted for less than 3 years you can make application under the FPA only if you and your partner were living together when your partner died and there is a “child of the de facto relationship” or you made a significant contribution to the relationship and, in both cases, it would cause serious injustice not to allow you to claim.
Choosing Option A gives you the right to claim a half share of your relationship property but usually means that you will lose the right to inherit under your partner’s will. An Option A claim has priority over the rights of other beneficiaries to take under your late partner’s estate and the claims of other near relatives under inheritance law.
Again, if you and your partner were married, you can also make a ‘top up’ application for further provision from your spouse or partner’s estate under the Family Protection Act 1955. If you and your partner were not married, you can still make a claim under the Family Protection Act 1955 so long as you and your partner were living together in a de facto relationship when your partner died and your relationship lasted for more than three years.
If your de facto relationship lasted for less than 3 years you can make application under the Family Protection Act 1955 only if you and your partner were living together when your partner died and there is a “child of the de facto relationship” or you made a significant contribution to the relationship and, in both cases, it would cause serious injustice not to allow you to claim. For general information on claims under the Family Protection Act 1955 see Family Protection Act 1955.
How is my spouse or partner’s estate divided if I have elected Option A?
If you have elected Option A then all property in your spouse or partner’s estate is presumed to be estate is relationship property, with the exception of inheritances or gifts which have not been intermingled with relationship property. This means that you have the advantage of not having to prove that your spouse or partner’s property is relationship property which would otherwise be the case had your spouse or partner been alive.
How much time do I have to decide which option to take?
Unless the estate is a “small” estate the choice between Option A and Option B must be made no later than 6 months after the grant of probate or letters of administration. This time limit is a strict one.
The choice must be in writing using a particular form which a relationship property lawyer can provide for you. The form needs to include a statement by your relationship property lawyer certifying that s/he has explained the consequences of the choice to you.
If you don’t make a choice between Option A and Option B, by default you will be assumed to have elected Option B in which case you will receive what, if anything, has been left to you under the will.
How much time do I have to issue proceedings once I have elected Option A?
It’s important to note that if you have elected Option A and your claim against the estate cannot be resolved, for example, because of opposition from the named beneficiaries, Family Court proceedings under the PRA must be commenced no later than 12 months after grant of probate or letters of administration.
What happens under the PRA if my relationship with my late spouse or partner lasted for less than 3 years?
Different rules apply for dividing property when a relationship is of short duration (usually less than 3 years) depending on whether you and your late partner were married or in a de facto relationship.
If you were in a short duration de facto relationship you can only make a claim under the PRA if there is a “child of the de facto relationship” or you made a significant contribution to the relationship and, in both cases, it would cause serious injustice not to allow you to claim. In both cases, your property would be divided according to contributions to the relationship, not on a 50/50 equal sharing basis. Otherwise, you would not be entitled to make a claim under the PRA and your property would be shared according to established legal and equitable principles. You should take advice from a relationship property lawyer to understand what rights you may have in that regard.
However, if you and your partner were married or in a civil union lasting for less than 3 years (including any preceding period where you lived together as a couple) you will have the same rights as you would have if your marriage or civil union lasted for more than 3 years. That means that you would have the same rights to a 50/50 equal share of the relationship property, unless the Court decided that that would be unjust.