Planning Ahead

When a partner dies.

The rules are different from separation. Understanding them now helps prevent difficult situations at an already difficult time.

Understand your options Plan ahead

Death is different from separation

When a relationship ends by separation, the Property (Relationships) Act generally requires equal division. But when the relationship ends because one partner dies, the surviving partner has a choice.

The Will

The deceased may have left assets to the surviving partner through their will.

Relationship Property

The surviving partner has rights under the Property (Relationships) Act.

These two sources of entitlement do not automatically combine - the surviving partner must choose between them.

The Choice

Option A or Option B

Each option has different implications for the surviving partner and other beneficiaries.

Option A

Claim under the Act

Under Option A, the surviving partner elects to claim their relationship property entitlement instead of accepting the will. This means:

The estate is divided as if the couple had separated immediately before death
The surviving partner receives their half of relationship property
The deceased's half plus separate property forms their estate for distribution
This can significantly change what other beneficiaries receive

When this might suit: When the will does not adequately provide for the surviving partner, or when equal sharing of relationship property would leave them better off than the will.

Option B

Accept what the will provides

Under Option B, the surviving partner accepts the provisions made for them in the deceased's will. This means:

You receive whatever the will gives you (which might be more or less than half)
The rest of the estate is distributed according to the will
You do not make a claim for your relationship property entitlement
The estate can be administered more quickly and simply

When this might suit: When the will provides generously for the surviving partner, or when the couple's priority was ensuring other beneficiaries (like children from previous relationships) receive their intended inheritance.

Important to Understand

How this affects other beneficiaries

The choice between Option A and Option B can significantly affect what other beneficiaries receive. This is often a source of tension.

Children from a previous relationship

John dies, leaving his estate to his second wife Mary. John's children from his first marriage expected to receive his share of the family home.

If Mary chooses Option A, she receives half the home as her relationship property entitlement, and only John's remaining half forms his estate to be divided among his children.

Family farm or business

Sarah dies, having promised the family farm to her son. Sarah's husband chooses Option A and claims half the farm as relationship property.

Only Sarah's half remains to pass to the son under her will. The farm may need to be sold to settle the claim.

These scenarios are not about anyone doing anything wrong - they simply reflect the interaction between two legal frameworks. But they can cause significant family conflict and disappointment.

The Solution

Planning to avoid problems.

The good news is that these difficulties can usually be avoided with proper planning. The key is ensuring your will, any trusts, and your relationship property planning all work together.

Contracting-out agreement

You and your partner can agree in advance on how property will be treated on death. This can ensure your children receive what you intend while still providing for your partner.

Coordinated wills

Both partners' wills can be drafted with relationship property in mind, ensuring the provisions work regardless of which option the survivor chooses.

Trust planning

Strategic use of trusts can protect assets for specific beneficiaries while still providing for your partner during their lifetime.

Life insurance

Life insurance can provide for your partner without affecting what your children or other beneficiaries receive from your estate.

Having the conversation

None of us like to think about death, but having these conversations while both partners are alive is far better than leaving difficult decisions - and potential conflicts - for after one of you has gone.

Key questions to discuss include:

? What do we each want to happen to our assets when we die?
? Do we have children from previous relationships who we want to provide for?
? Are there family assets (like a farm or business) that we want to keep in the family?
? How do we want to balance providing for each other with providing for others?
? Do our current wills reflect our wishes, given relationship property law?

These are not easy conversations, but they are important ones. Professional advice can help you understand your options and create a plan that works for your situation.

Key Takeaways

When a partner dies, the survivor has a choice: claim under the Act (Option A) or accept the will (Option B)
This choice can significantly affect what other beneficiaries receive
Children from previous relationships are often affected by the survivor's choice
Planning ahead with coordinated wills, agreements, and trusts can prevent problems
Having these conversations while both partners are alive avoids difficult situations later

Related Guide

Understand how relationship property law applies to your situation and how it interacts with estate planning.

Read the Where Do I Stand? Guide