In our new column, we answer commonly-asked questions about estate planning – wills, enduring powers of attorney and estate administration – to help you and your whānau make informed decisions.
When it comes to estate planning, past relationships can have surprising implications. Public Trust’s Justine Wood answers a common question that might have you rethink things.
Question from Jennie*: I have an ex-husband who I haven’t been with for around 10 years. I’m currently single and have no children. I’ve heard from friends that he could be entitled to get a share of my estate when I die. Is this true?
That’s an excellent question, Jennie – and it’s one we hear quite often. In your case, yes it could be true, and largely depends on whether you’re divorced or legally separated.
It comes down to: In the eyes of the law, are you still viewed as being together? The second part which will determine what happens to your estate is whether you have a will or not.
The answers can be a bit complex, and might surprise you.
If you have a will
If you have a will, you would have outlined your wishes about what you’d like to happen to your assets when you die.
If you are not divorced or legally separated, whatever you’ve included might still apply. So, if your ex has been provided for in this will, they may still inherit. They may also be able to make a claim against the estate under the Family Protection Act or Property Relationships Act. Read more about that here.
What happens if you are divorced or legally separated and have not updated your will to reflect this?
Divorce or legal separation does not revoke your entire will but it does change some things. After a person is divorced or legally separated, the will is read as if the ex spouse/partner died before the willmaker. This means:
If your ex was appointed executor or trustee, this is now void.
Any gifts or distributions made to your ex are now void (unless you specified in your will you want your ex to receive them regardless of any split)
The rest of the will remains valid.
If you do not have a will
If you die without a will, this is called dying intestate and your estate will be administered according to the Administration Act. This is a legal process to determine how assets are distributed.
If you are not divorced or legally separated, your ex may inherit under this law.
Jennie, you’ve told us you have no children, but I’m unsure of your wider family situation. Generally speaking, here’s what happens in situations like yours:
If there is a spouse or partner, but the deceased has no parents or children: The spouse receives the entire estate.
If there is a spouse or partner and parents, but no children: The spouse receives the personal effects (such as furniture, paintings, homeware), $155,000 (with interest from the date of death) and two thirds of anything that’s left. The deceased’s parents will receive the remaining third divided equally amongst them.
If there is no spouse or partner, no children, but there are surviving parents: The entire estate is divided equally between the parent or parents.
If there is no spouse or partner, no children, no surviving parents but surviving siblings: The entire estate is divided equally between the siblings.
If none of the above scenarios apply, a genealogist may be engaged to determine next of kin details. Find out more details here about what happens when you die without a will.
The importance of professional advice
If you’ve experienced a relationship split, we encourage you to seek legal advice from an expert that specialises in relationship matters as every situation can be very different. Find out whether there are additional steps to take to ensure your ex will not inherit if this is not intended. Once that is done, update your will accordingly. If you don’t have a will, now is a great time to write one.
Writing your will with expert support
Estate planning can feel complicated, especially when relationships change. A will is one of the best ways to help protect your assets and give peace of mind to those you care about. A well-structured will does more than list your wishes. It can help prevent confusion, and can make things easier for your loved ones when you pass. That’s why getting professional advice is so important. A Public Trust expert can guide you through your options and make sure your estate plan truly reflects your intentions, whether that’s in-person, over the phone, or access via our online chat service at a time and place that suits you.
Regularly reviewing your will is key and it should evolve with your circumstances. If your relationships change, like entering a new relationship or ending one, review it again.
And don’t forget to talk to your loved ones about your plans. Open communication is a great idea.
Kind regards,
Justine Wood, specialist at Public Trust
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*Names have been changed for privacy reasons.