Under New Zealand law, if a de facto partner dies without leaving a valid will, their surviving partner inherits their ‘personal chattels’ and the first $155,000 of what else they left. (Children and parents get a share of anything above $155,000.)
Are you still the ‘surviving partner’ if you were living apart?
You are the ‘surviving de facto partner’ for inheritance purposes if you were ‘living in a de facto relationship with the deceased person at the date of his or her death’ (Administration Act 1969 s 2). (However, if the relationship was less than 3 years, there are other issues about whether or not you can inherit.)
That does not mean you had to be living under the same roof.
In law, a ‘de facto relationship’ is a relationship between 2 persons (regardless of their sex, sexual orientation, or gender identity)—
- who are both aged 18 years or older; and
- who live together as a couple; and
- who are not married to, or in a civil union with, one another. (Definition in section 2D of the Property (Relationships) Act 1976, applied to inheritance by section 2 of the Administration Act 1969 and section 2 of the Property (Relationships) Act 1976.)
So far, so good. If either of you was 17 at the date of death, you are not the ‘surviving de facto partner’.
‘Living together as a couple’ – what does that mean?
How does the law assess whether you were ‘living together as a couple’?
The test is the same for inheritance purposes as for relationship-property purposes. The basic principles are set out in section 2D(2) of the Property (Relationships) Act 1976.
All the circumstances of the relationship must be taken into account.
Those circumstances include – but are not limited to – any of the following factors which are relevant in the particular case:
- the duration of the relationship
- the nature and extent of common residence
- whether or not a sexual relationship exists
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
- the ownership, use, and acquisition of property
- the degree of mutual commitment to a shared life
- the care and support of children
- the performance of household duties
- the reputation and public aspects of the relationship.
None of those factors is automatically necessary. (See Property (Relationships) Act 1976 s 2D(3)(a).)
So – in law – it is not necessary for a de facto relationship to have a ‘common residence’. The ‘nature and extent of common residence’ is simply one factor that may be relevant, depending on all the circumstances.
If the facts otherwise point clearly to a de facto relationship, the fact that one of you moved out a few days before your partner’s death does not, in itself, change things.
If other factors also changed – for instance, you told your parents and friends the relationship was definitely over, and you cancelled or emptied the joint bank account – more close scrutiny will be required.
If a situation is borderline, you will need more detailed legal advice about how this test has been interpreted and applied in the courts, and what is likely to happen in your own situation. (I do not provide such detailed advice. I can refer you to someone else who can.)
If it becomes reasonably clear that the de facto relationship had indeed ended before your partner’s death, you can still claim under relationship property. You will generally be entitled to 50% of the total ‘relationship property’ owned by either or both of you. If you choose to claim under relationship property, you cannot also claim under inheritance, and you cannot be the administrator of the estate. You should obtain specific legal advice before making this decision. (I can refer you to someone else for that. Kiwilaw does not do relationship-property work.)
If you and your partner are currently still alive, please make wills. All of the above applies only if you die without a valid will. Dying without a valid will is the easiest way to give lots of money to lawyers.
Cheryl Simes
17 December 2022