Family Finances on Death of a Spouse or Partner

Abstract

On death there is an inevitable tension in succession law between property and family, between testamentary freedom and the deceased’s duty to provide for family members. This paper considers the relationship property rights of a surviving spouse (or partner) in common law jurisdictions. The author compares English and Australian law with New Zealand and concludes that surviving spouses are still in a state of dependency and are vulnerable to the claims and interests of others, particularly in Australia and New Zealand. To reduce their dependency, this paper recommends that spouses should be given their relationship property entitlement on death to acknowledge their respective contributions to the creation of their combined wealth and that this entitlement should not be affected by succession law.