Separation can already be a difficult, emotional time, but what if one partner dies while you’re in the middle of it? It’s a scenario that can raise more questions than answers, and understandably, there’s a lot of confusion about what happens legally, financially, and emotionally in this situation.
It's one of the things that I remind my divorce and separation clients to think about during the process. Sometimes in police we would be handing death benefit checks for police staff to their ex-partners because the deceased member had not updated their insurance policies. I vividly remember the hurt and anger that would occur when the 'new' partner learnt that because the will had not been updated, the 'ex' would be receiving a substantial part of the estate.
So here’s a quick look at the key things you need to know - please remember this is just to get you thinking and you might need specialist advice.
1. Legal Status of the Separation
If you’re in the process of separating but not legally divorced, the legal status of your relationship is crucial. In New Zealand, if a partner dies during separation, the surviving partner may still be considered a spouse for the purposes of inheritance and estate laws. This means that, unless there’s a will stating otherwise, the surviving partner could still inherit from the deceased’s estate, including property and assets.
However, if the deceased partner had a will or made other arrangements, the terms of that will generally take precedence.
2. The Property Division
If you’ve separated but not yet finalised a property division agreement, this can become complicated. In some cases, the surviving partner may still have a claim to a portion of the deceased’s property, depending on whether an agreement was in place and what the deceased’s will stipulates. The separation agreement or any binding financial agreement could also play a role in determining how assets are divided.
In some cases, if a partner dies before a property settlement is reached, the surviving partner may need to negotiate with the deceased's estate to finalise the division of assets.
3. Children and Guardianship
If you have children together, the question of guardianship and parenting arrangements becomes especially important. While separation might mean one partner no longer has day-to-day responsibility, if one parent passes away, the surviving parent generally assumes full responsibility for the children. If there are concerns about guardianship, the deceased's will or the Family Court may intervene to determine what’s in the best interests of the child.
4. Emotional and Financial Support
Death during a separation can also impact the emotional and financial support systems in place. The surviving partner might be entitled to any life insurance or superannuation benefits, depending on the policies in place and the deceased partner's will. However, emotional and practical support from friends, family, and even professional advisers becomes even more vital during such a challenging time.
5. What If There's a New Partner?
If the deceased partner was in a new relationship after separation, their new partner might also be entitled to make claims on the estate, depending on the circumstances. If the separated couple had formal separation agreements or were legally divorced, the surviving partner's claim would be clearer, but each situation is unique.
While the death of a partner during separation can be a complex legal issue, it’s important to seek legal advice to understand your rights and responsibilities. A family lawyer or legal professional can help you navigate the emotional and legal complexities during this difficult time.

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