When a person dies in a second or later marriage or de facto relationship, their children from an earlier relationship can find themselves shut out twice over. First, the will may leave everything to the surviving partner. Second, much of the couple’s wealth may never enter the estate at all, because jointly owned assets pass automatically to the surviving spouse or de facto partner by survivorship. If that surviving partner is also the executor, the children or stepchildren can face a particularly difficult problem: there may be little or nothing in the estate against which to bring a Family Protection Act claim, yet the only practical route to relief requires litigation steps the executor may have no interest in taking.
In New Zealand, this problem sits at the intersection of the Property (Relationships) Act 1976, the Family Protection Act 1955, and the Administration Act 1969. It is especially acute in blended families. Stepchildren generally have no direct claim against a stepparent’s estate merely because they have missed out. New Zealand commentary has repeatedly noted that, in these situations, children of the deceased parent may instead need to proceed against their own parent’s estate and first enlarge that estate by seeking a division of relationship property.
The core difficulty is simple enough. Assets held in joint tenancy do not fall into the deceased’s estate. They pass immediately to the surviving joint owner by operation of law. Where the family home, bank accounts, and investments were jointly owned, survivorship can strip the estate of its substance. In practical terms, that may defeat any claim by the deceased’s children under the Family Protection Act, unless some of that property can be brought back into the estate.
For stepchildren the route is rarely straightforward. The surviving spouse or de facto partner is often both the person who received the jointly held property by survivorship and the executor of the estate. That creates an obvious conflict. The executor would be asked, in effect, to initiate proceedings that may reduce their own beneficial entitlement by transferring assets or value back into the estate. If the executor refuses to act, the children first need to successfully apply to the High Court to remove and replace that executor under section 21 of the Administration Act 1969, so that an independent administrator can consider the estate’s position objectively and, if appropriate, apply under section 88(2) for leave to bring an application for division of the couple’s relationship property. For leave to be granted serious injustice must be proved.
That inquiry is highly fact-specific. Matters likely to be relevant include the size and composition of the estate, the extent to which assets passed outside the estate by survivorship, the strength of the children’s prospective Family Protection Act claims, the needs and position of the surviving partner, the structure of ownership during the relationship, and any indication of the deceased’s testamentary intentions.
If leave is granted, the representative may then seek an order under section 25(1)(a) of the Property (Relationships) Act for division of the relationship property; the practical objective being to bring back into the estate the deceased’s half share of what would otherwise have passed wholly to the surviving partner. That does not mean the children are automatically entitled to that half. It means only that the estate may once again contain assets against which the deceased’s children can advance a claim that the deceased failed to make adequate provision for their proper maintenance and support under the Family Protection Act.
The distinction matters. A section 88(2) application and a section 25 division proceeding are not substitutes for a Family Protection Act claim; they are the necessary precursor to one.
This area is therefore procedurally demanding and strategically sensitive. In many blended-family disputes, the litigation unfolds in three stages: first, replacing the conflicted executor; second, obtaining leave under section 88(2) and pursuing relationship property division; and third, advancing the Family Protection Act claim against the now-enlarged estate. In all such cases it should be a priority to engage an experienced estates and relationship property lawyer who is able to give sound advice as to the cost benefit of such proceedings.
