June 2021

Later life relationships can be fulfilling and rewarding but may involve challenges from children and grandchildren specifically arising from expectations around inheritance. Children and finances appear to be the top two challenges that may keep a couple from a long-term relationship.

Protecting your assets in a later life relationship

Asset and estate planning should be considered early on in the relationship and ideally before a de facto relationship commences. An older couple beginning a relationship should think seriously about entering into a contracting out agreement for the purposes of the Property (Relationships) Act 1976 (the Act). Such an agreement can ring-fence pre-relationship assets as separate property of either party, so they are not subject to the equal sharing provisions of the Act.

Ownership of a ‘family home’ should also be considered carefully, which may require ownership in shares, for example, 50/50 rather than jointly. Where the family home is owned jointly, and one person dies, the survivor is entitled to the deceased’s interest. If owned in shares, the deceased’s share passes in accordance with the terms of their will.

New wills are particularly important for older people when entering into a new relationship. Entering into a marriage or civil union revokes a will unless the will was made in contemplation of that event. Life interest wills could also be considered. These are most commonly used to create a lifetime right of occupation for a surviving spouse or partner, so that they can live in the family home (or any replacement home) for as long as they wish. That right could extend to acquiring occupancy rights in a retirement village too. On the death of the survivor the home could be sold, and the proceeds divided among the children from previous relationships.

Friendships among older people can also create their own problems. While friendships can provide valuable companionship and support, some friendships constitute a de facto relationship. The Act applies to those relationships.

Relationships formed over the internet are more vulnerable to the danger of fraud. An older person may be less capable of using appropriate safeguards to protect themselves against emotional and financial loss. Unscrupulous people may prey on their generosity.

Later life romances can be more complicated because of diverse family dynamics, but if managed correctly, should not be discouraged just because they are complex.

Below are matters that should be considered in the context of later life relationships:

• Is a contracting out agreement required?
• Are new wills required?
• Should the new will include a life interest for the spouse or partner?
• How is the health of both parties?
• Do both parties have enduring power of attorney documents in place?
• Is a new trust required to ring fence assets for the new relationship?
• If there is a family trust, should the new partner be appointed as a beneficiary and what is to happen should the settlor die?
• What are the risks in being ‘good friends’?
• Does the new relationship affect either party’s eligibility for a Residential Care Subsidy?
• Does the origin of the relationship raise any concerns, for example, did it commence over the internet or through a match-making service?

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