INTRODUCTION

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. Balancing these two potentially conflicting interests is an ongoing challenge, affected by changing social values and expectations. If the deceased leaves a spouse (or a civil union partner, or de facto partner) a further tension may exist between succession law and a spouse's contribution-based property entitlement, referred to in this chapter as a relationship property entitlement. Should surviving spouses have the same relationship property rights on death as on divorce, or is death of a spouse sufficiently different from divorce that succession law should determine the rights of a surviving spouse?

The common law and civil law jurisdictions have responded differently to this question, while New Zealand draws on both civil law and common law principles. It thus offers a unique perspective on the rights of a surviving spouse or partner. In common law jurisdictions, such as England and Australia, a separate property system applies to married couples on death and on divorce. Neither jurisdiction has a ‘matrimonial property regime‘ with a code of rules governing property division at the end of a marriage. If the marriage ends during the joint lifetime of the spouses the courts have discretion to adjust their property rights in the interests of fairness or justice for the family as a whole. That power is not available if the marriage ends because one of the spouses has died. A deceased spouse may freely dispose of his or her property by will. To the extent that the surviving spouse lacks financial provision, the courts have the power to override the terms of the will or the intestacy rules by ordering provision from the estate for the surviving spouse. Property distribution on both death and divorce is therefore premised on the duty of one spouse to provide for the other spouse, rather than on any property entitlement or notion of community property. It is a matter of family duty rather than property entitlement, and on death the duty is governed by succession law rather than the law governing property division on divorce.