A recent Supreme Court decision has highlighted an important connection between relationship property agreements, wills and what happens when someone dies without a will.
In Rimmer v Wilton [2026] NZSC 122, the Court considered whether a surviving partner could receive the benefits provided to her under a contracting-out agreement and then also receive additional property from her partner’s estate under the intestacy rules, which apply when somebody dies without a will.
David Rimmer and Carolyn Wilton had been in a de facto relationship since 2000. They owned their Hūnua home together as tenants in common. In 2002 they signed a contracting-out agreement under the Property (Relationships) Act 1976.
Importantly, the agreement dealt not only with what would happen if they separated, but also with what would happen to their property if one of them died. It preserved their respective property interests and gave the survivor a lifetime right to occupy and use the Hunua property. It also stated that the agreement was in full and final settlement of claims each might have against the other under any statute, common law or equity.
Mr Rimmer died in 2016 without a will. His estate included his interest in the Hūnua property, cash and investments and personal possessions.
Normally, when a spouse or partner dies, the surviving partner has a choice. Broadly, they can ask for the couple’s relationship property to be divided under the Property (Relationships) Act, or they can leave the relationship property regime aside and instead take whatever they are entitled to under the deceased’s will or, if there is no will, under the statutory intestacy rules.
Ms Wilton chose the second course. She argued that she was therefore entitled both to the benefits of the contracting-out agreement and to the additional benefits available to a surviving partner under the intestacy rules. The High Court and Court of Appeal accepted that position.
The Supreme Court disagreed.
It held that a contracting-out agreement can determine what property rights the survivor will have when the other partner dies and can, depending upon its wording, exclude rights the survivor would otherwise receive under the intestacy rules.
In this case, the agreement meant Ms Wilton could not use those rules to obtain additional rights in Mr Rimmer’s property contrary to what they had already agreed. In particular, her entitlement to his share of the Hūnua property was limited to the lifetime interest provided by the agreement.
The Court also made an important distinction. The agreement did not prevent Mr Rimmer from later choosing to leave Ms Wilton additional property by will. He could have done so, but he died without making one.
THE LESSON
Rimmer v Wilton is a strong reminder that relationship property and estate planning should not be treated as separate exercises. A contracting-out agreement can affect what a surviving partner receives on death, particularly where there is no will.
Couples with existing agreements should therefore check that their contracting-out agreement and their wills work together and still reflect what they want to happen when either of them dies. This can be particularly important for blended families, second relationships and couples with children from previous relationships.
