Prenups, wills and what happens when a partner dies
Updated 2026-08-09. General information, not legal advice.
A New Zealand prenup is not only about separation. The Property (Relationships) Act 1976 also applies when a partner dies: a surviving spouse or partner can generally choose between taking what the will (or intestacy) leaves them, or instead applying for a division of relationship property under the Act, broadly the same 50/50 division that would apply on separation. That choice can cut across a carefully written will. A contracting out agreement can set the property rules that apply on death, which is why an agreement and your wills should be drafted to work together.
Why a will alone may not decide who gets what
People assume a will is the last word. For couples, the Act sits above it: if the survivor elects division under the Act, relationship property, often including the family home, is divided first, and the will operates only on what remains in the estate. A will that leaves the house to children from a first marriage can be defeated by the surviving partner's election. Other claims, such as family protection and contribution-based claims, can also reshape an estate, but for partners the Act's election is the big lever.
What a prenup can settle in advance
A contracting out agreement can classify property for death as well as separation: confirming what is separate property that flows under the will, agreeing the survivor's entitlement, or agreeing that each partner's estate passes according to their will. For blended families this is the difference between certainty and litigation: the agreement protects the surviving partner's position and the children's inheritance at the same time, on terms everyone knew in advance. Pair it with the wider inclusion checklist and, where a family trust holds assets, with the trust documents.
Drafting note: agreements intended to bind on death need specific provisions, and your wills should be updated in the same exercise so the documents point the same way. This is standard work for the lawyers doing the section 21F advice.
Who needs this most?
Couples re-partnering with children from earlier relationships; couples with significant asset differences; farming and business families where the asset must not be split; and anyone whose estate plan assumes the house goes a particular way. If your will matters to you, the Act's survivor election is the loophole to close, and the agreement is the tool that closes it.
Common questions
- What happens to relationship property when a partner dies in NZ?
- The surviving partner can generally choose between taking under the will or intestacy, or applying for division of relationship property under the Act, broadly the equal sharing that would apply on separation. A contracting out agreement can set different, agreed rules in advance.
- Can a prenup override a will?
- They govern different things and should be drafted together. The agreement sets how property is classified and divided between partners, including on death; the will directs the estate. A well-drafted pair removes the conflict; a mismatch invites exactly the dispute both documents were meant to prevent.
- We each have children from previous relationships. Where do we start?
- With both documents at once: a contracting out agreement that fixes each partner's property and the survivor's position, and mirror-updated wills that distribute each estate accordingly. This combination is the standard structure for blended families in NZ.
Sources
All information published on prenup.nz, including this guide, is general information only and is not to be construed as legal advice. We strongly recommend seeking independent legal advice about your own situation. A contracting out agreement only binds you once each partner has taken independent legal advice and a lawyer has witnessed and certified each signature, as section 21F of the Property (Relationships) Act 1976 requires.