De Facto and Living Together: Why Your Partner May Not Be Automatically Protected
You have been together for years. You share a home, finances, maybe children. In every meaningful sense, you are family. So it is understandable to assume that if something happened to you, your partner would be looked after.
Under New Zealand law, though, that assumption is not always well founded. Without a Will, your partner might receive far less than you intended, or in some situations, face a complicated process to access anything at all.
This blog covers some of the key things de facto couples in New Zealand may want to be aware of. It is general information only, not legal advice, and we recommend speaking with a legal professional if you have specific questions about your circumstances.
What is a de facto relationship?
A de facto relationship is one where two people live together as a couple but are not legally married or in a civil union. New Zealand law does recognise de facto relationships in certain contexts, but that recognition does not extend equally to all areas of law. Inheritance and relationship property, for example, are governed by separate pieces of legislation with different thresholds and tests.
A common misconception: living together means you're covered
Many people assume that a long-term de facto relationship gives their partner the same inheritance rights as a married spouse. In most cases, that is not how New Zealand law works.
If you pass away without a Will, your estate is distributed under the Administration Act 1969, which sets out a specific order of people who may inherit. A de facto partner may be entitled to a share in some circumstances, but that depends on whether the relationship meets the relevant legal criteria, and the process is not automatic. In some cases, a surviving partner may need to make a formal application to establish their entitlement.
That process takes time, costs money, and adds complexity during an already difficult period.
Some situations worth being aware of
The following are examples of situations that can arise for de facto couples without a Will. These are not guarantees about any individual outcome, just illustrations of why this area of law is worth understanding.
Other family members may have priority.
If a de facto relationship does not meet the relevant legal threshold under intestacy rules, an estate may pass to parents, siblings, or other relatives rather than a surviving partner.
Children from a previous relationship may have a stronger legal claim.
Where someone has children from a previous relationship, those children may have stronger inheritance rights under the law than a current de facto partner. This can create difficult situations, particularly around shared property.
Proving the relationship can be required.
In the absence of a Will, a surviving partner may need to provide evidence of the relationship to the courts, including its duration and nature. This is an additional burden at an already stressful time.
How a Will addresses this
A Will puts your intentions in writing. It can help remove the guesswork, the grey areas, and the potential for family conflict. With a valid Will, you can make clear:
Who receives your estate, or assets within it
How children from previous relationships are provided for alongside your current partner
Who acts as executor, with legal authority to manage your estate
How specific assets like KiwiSaver, savings, and investments are to be handled
What about the Property (Relationships) Act?
New Zealand's Property (Relationships) Act gives de facto partners certain rights in relation to shared property after three years together. This is separate from inheritance law, and the two operate independently. Rights under the Property (Relationships) Act do not automatically determine what happens to assets held in your name alone when you pass away.
A simple step with a meaningful impact
If you are in a de facto relationship and do not have a Will, or if your Will was written before your current relationship began, it is worth taking the time to sort it out. It takes less time than most people expect, and the peace of mind it creates is real.
Planning to get married? There's a clause for that.
Here is something many people are not aware of: in New Zealand, getting legally married automatically revokes any existing Will. That means if you write a Will today and marry later, your Will may no longer be valid from the moment you marry, unless you have planned ahead.
If there is any chance you and your partner will marry in the future, it is worth including a contemplation of marriage clause when writing your Will. This means your Will remains valid when you legally marry, without needing to start again from scratch.
When you write your Will through Footprint, you have the option to include this clause as part of the process. It is a straightforward step that can save complications down the track.
You can read more about this here: Why It Matters When you Create your Will
Don’t leave your partner's future to chance. Visit myfootprint.co.nz to get your Will sorted today.
This article is general information only and is not a substitute for legal advice. If your situation is complex, we recommend talking to a legal professional.
