A recent Supreme Court decision is an important reminder that a contracting-out agreement, often referred to as a “pre-nup”, can have consequences well beyond what happens if a couple separates.

In Rimmer v Wilton [2026] NZSC 122, the Supreme Court considered what happened when one partner died without a will and the couple had a contracting-out agreement in place. The Court ultimately found that the agreement governed the surviving partner’s entitlement to the deceased partner’s share of their home, limiting that entitlement to a lifetime right to occupy the property rather than an additional beneficial interest under the intestacy rules.

The decision highlights an issue that is sometimes overlooked when couples enter into a contracting-out agreement: what happens if the relationship ends because one of you dies?

What happened in Rimmer v Wilton?

David Rimmer and Carolyn Wilton had been in a de facto relationship since 2000. In 2002, they entered into a contracting-out agreement under the Property (Relationships) Act 1976.

The agreement dealt with their respective interests in their property, including their home at Hūnua, which they owned as tenants in common in equal shares.

Mr Rimmer died in 2016 without leaving a will. Ms Wilton, as the surviving partner and administrator of his estate, considered that she was entitled both to the interest she had under their contracting-out agreement and to a further share of Mr Rimmer’s estate under the intestacy provisions of the Administration Act 1969. Mr Rimmer’s adult children challenged that position.

The dispute ultimately reached the Supreme Court.

What did the Supreme Court decide?

The Supreme Court focused on the wording of the contracting-out agreement and, in particular, the way its provisions worked together.

The agreement gave the surviving partner a lifetime right to occupy and use the relationship property. It also provided that the agreement was intended to be a “full and final settlement” of claims between the parties and was binding on their estates and personal representatives.

The Court concluded that, read together, those provisions meant Ms Wilton was entitled to her own share of the property and a lifetime interest in Mr Rimmer’s share, but not a further beneficial interest in his share under the intestacy rules.

Importantly, the Supreme Court did not say that every contracting-out agreement will automatically determine what happens to property when one party dies. The outcome will depend on the wording of the particular agreement, the surrounding circumstances, the way the property is owned and, importantly, whether there is a will.

The Court also confirmed that a contracting-out agreement does not prevent a person from subsequently leaving property to their partner by will. In other words, the agreement and a will can operate together.

Why does this matter if you have a contracting-out agreement?

Many couples enter into a contracting-out agreement with separation in mind. They want certainty about what each person would take away from the relationship if they separated.

But separation is not the only way a relationship ends.

The Property (Relationships) Act expressly contemplates contracting-out agreements dealing with the division of relationship property where one party dies. The Supreme Court’s decision reinforces that a carefully drafted agreement can therefore be relevant to what happens to property on death as well as on separation.

That makes it important to ask a broader question when entering into, or reviewing, a contracting-out agreement:

If one of us dies, does this agreement produce the outcome we actually intend?

For example, you may have intended your partner to inherit your share of the family home. Or you may have intended your children or other family members to retain an interest in that property. Your contracting-out agreement may affect the position in ways you had not anticipated.

Equally, an agreement that was appropriate when it was signed may no longer reflect your circumstances many years later.

Three things to consider

1. Does your contracting-out agreement deal with death?

Do not assume that your agreement only matters if you separate.

If you have an existing agreement, it is worth checking whether it addresses what happens to relationship property on death and what rights the surviving partner will have.

The wording can make a significant difference.

2. Does your will work with your contracting-out agreement?

Your contracting-out agreement and your will should be considered together.

A will may provide for property to pass to your partner, children or other beneficiaries, but the effect of that provision needs to be considered alongside the rights created by your contracting-out agreement and the way assets are owned.

The Supreme Court’s decision is a useful reminder that relationship property planning and succession planning should not be treated as completely separate exercises.

3. Has your agreement kept pace with your life?

Circumstances change.

You may have acquired significant assets, had children, separated and reconciled, established trusts, changed the way you own property, or experienced a significant change in your financial position since your contracting-out agreement was signed.

An agreement that made sense 10 or 20 years ago may not necessarily produce the outcome you would want today.

The practical takeaway

A contracting-out agreement is an important part of protecting your interests and providing certainty around relationship property. But it should be considered in the context of the bigger picture.

If you have a contracting-out agreement, or are considering entering into one, think beyond separation. Consider what you want to happen if one of you dies, and make sure your agreement, property ownership and estate planning are aligned.

The Rimmer v Wilton decision is a timely reminder that the precise wording of a contracting-out agreement can have significant consequences at death. Taking the time to review those arrangements now can help avoid uncertainty and potentially significant disputes for your partner, children and other beneficiaries later.

Need advice?

Our private client disputes team advises on contracting-out agreements, relationship property, trusts and estates, and the interaction between these areas. We can help you consider your arrangements as a whole and ensure your legal documentation reflects what you actually intend, in life and in death.