The Ex-Files: Wills and separation - what you need to know

Even if separated, your ex-partner could be the beneficiary of your estate if you do not change your Will. Photo / 123RF

COMMENT:

Q. My husband and I have separated but have not yet divorced. I have started a new relationship and my partner and I have been together for a year.

I cannot remember whether I have a Will - I think my ex-husband and I went and saw a lawyer years ago, but my ex-husband usually dealt with all the legal matters and he has all our personal documents.

We do not get along and are yet to sort out our property settlement, including some properties we jointly own.

Is it important to sort out a Will now? It seems more important to focus my time and money on sorting out a split of our property.

A. While it can be overwhelming dealing with all the issues after a separation, it is very important to update your Will if you want someone other than your ex-husband to be the beneficiary of your estate.

If you have an existing Will

If you have a Will in place under which your ex-partner is the primary beneficiary, then he would be entitled to benefit from your estate if you passed away, even though you are separated. If you have a relationship property agreement, it could create more certainty for you.

Your current partner and any future children you have would receive nothing, unless they brought a claim in the Family Court which can be an arduous and expensive process.

There would also be restrictions on your partner's claim – they would not be able to bring a claim unless you had been in a de facto relationship for at least three years at the time of your death.

One exception to this is if your relationship was for less than three years, but you have a child together. Your partner may also be able to make a claim if they had made substantial contributions to your relationship and the Court is satisfied there would be a serious injustice if no order was made.

Even if your partner was able to bring a claim, they would not be entitled to your entire estate. The Court would only award an amount that is necessary to remedy your breach in moral duty by not including them as a beneficiary. It would not prevent your ex-partner from benefitting as well.

If you don't have a Will

If you do not have a Will, then your estate would be divided in accordance with the Administration Act 1969. This will be a more costly and time-consuming process that will require you to engage lawyers.

There would be the same limitations and challenges to your partner and future children receiving a share of your Will as discussed in the situation above.

If you had been together with your partner for more than three years at the time of your death and your marriage to your ex-husband had not been dissolved, then they would have competing claims and would each receive half of your estate. If you had a child, they would also receive a share in the estate.

Jointly owned property

How you and your ex-husband own your jointly owned property will affect the way it is dealt with after your death.

Where there are two or more owners of property, the property can be owned as joint tenants or as tenants in common.

If property is owned as joint tenants, then there is a right of "survivorship". This means your ex-husband could be entitled to the whole of your joint property regardless of whether you have a Will and regardless of what that Will says.

If you own the properties as tenants in common, then each of you individually own your half share in the properties.

As a joint tenant, you are entitled to sever the joint tenancy and become owners as tenants in common. This will ensure your share of the properties is not transferred to your ex-husband through the "survivorship" rule.

Conclusion

Even if people have separated, their assets might still be transferred to their ex-partner if they pass away.

If you want to avoid this, you need to find out how your property is owned and change the ownership structure if necessary. You should also update your Will to reflect your changed circumstances.

If your affairs are not in order and you suddenly pass away, your loved ones might have to face the expense and stress of a lengthy legal dispute to ensure your wishes are followed.

Do you have a family law question? Email it to js@bastionchambers.co.nz. Questions should not exceed 200 words. Please provide a phone number. Your name will not be published. Jeremy cannot answer all questions, correspond directly with readers, or give legal advice. Jeremy's advice is of a general nature, and he is not responsible for any loss that any reader may suffer from following it.

Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures. www.jeremysutton.co.nz