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When someone dies what property should a surviving partner get?

The Property (Relationships) Act 1976 says that when a relationship ends, each partner gets to share equally in the couple’s relationship property.

The reason for equal sharing is that the law treats each partner’s contributions to a relationship as being of equal value. As a result, each partner gets an equal share of the property connected with the relationship.

When people die, their property is distributed according to their will or the rules of intestacy (which apply when there is no will). But a problem can arise where the deceased leaves their surviving partner less than their equal share in the property. In that case, the surviving partner would be worse off than if the couple had separated while they were both still alive.

To avoid a situation where the surviving partner could be worse off, the law allows a surviving partner to choose whether:

  1. to take whatever the surviving partner receives under the deceased partner’s will; or
  2. to divide the couple’s relationship property equally under the Property (Relationships) Act 1976.
Todd and Myra
Todd and Myra are in their 70s. They have been married for ten years.

Todd has an adult son, Daniel, from a previous marriage. Myra has no children.

They live in a house owned by Todd.

The couple live on the income each receives from their superannuation.

A year ago Todd was diagnosed with cancer. Myra supports Todd through his illness.

She does most of the housework. She provides love and comfort to Todd. In the last weeks of Todd’s life she nurses him.

Shortly after Todd dies, Todd’s lawyer writes to Myra. She tells her that under Todd’s will Myra will inherit $10,000. Todd also gave $20,000 to Daniel. Todd left the rest of his property to support cancer research.

Myra is surprised. She always assumed that Todd would leave the majority of his property to Myra because they were married.

Myra goes to see a lawyer. The lawyer explains to Myra that if she and Todd had separated before he died, she would have received half their relationship property, including half the value of their home.

The lawyer says Myra should think about dividing her and Todd’s property under the Property (Relationships) Act 1976 rather than accepting the gift of $10,000 under Todd’s will.

The idea is that surviving partners should get at least half of their share of relationship property under the Property (Relationships) Act 1976.

We want to know what you think a surviving partner should be entitled to.

What do you think?

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Sometimes a deceased’s family members believe they should get more property under the deceased’s will. Sometimes the law allows these people to take a greater share of the deceased’s estate if the will has not recognised them properly. The law also allows people to make claims against the deceased’s estate when the deceased promised to give property to a person in their will but then reneged on the promise.

If a surviving partner chooses to take half the couple’s relationship property rather than their share from the will, their half share will take priority over other claims. Any other claim for a share of the deceased’s property will not affect the surviving partner’s entitlement to half the couple’s relationship property.

Todd and Myra
Myra follows her lawyer’s advice and chooses to divide the couple’s property under the Property (Relationships) Act 1976.

Todd’s son Daniel also feels that he has been unfairly left out of Todd’s will. Daniel goes to see a lawyer.

The lawyer tells Daniel that he can make a claim for a greater share of Todd’s estate. But because Myra has chosen to divide her and Todd’s relationship property equally, Daniel can only claim a greater share of Todd’s half share.

We want to know whether you think a surviving partner’s entitlement deserves priority.

What do you think?

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