How do I stop my partner leaving everything to a new partner?

Why it happens in the first place

A will is not a promise to anybody. It is an instruction that can be torn up and replaced any day of the week, as long as the person understands what they are signing. So when you leave everything to your partner, you have given them the house and the money. You have not given them a rule about what to do with it.

Two things make it worse in Queensland. If your partner remarries, the act of getting married wipes out most of their existing will. Plenty of people never get around to making a new one, and then the law decides who inherits. A new husband or wife comes before children from an earlier relationship, and if those children are not the new partner's children too, they can end up with nothing at all.

Moving in with somebody without marrying does not cancel a will. It does, though, create a person who can make a claim on the estate later.

None of this requires anyone to behave badly. That is the part people find hardest to accept. In the cases I see, the new spouse is usually perfectly decent and the old will just never got looked at again.

Let your partner live in the house without owning it

This is the one most couples land on. Rather than leaving your partner the house, you leave them the right to live in it. You decide when that right ends: on their death, or if they remarry, or if someone moves in, or if they go into care. After that the house goes to your children.

It works because your partner never owns the place, so they cannot leave it to anybody.

The trouble is that people write it in one line and think they are done. "My wife may reside in the property for her lifetime." Ten years later nobody can agree on who pays for the new roof, or whether the house can be sold now that the stairs are a problem, and the children and the widow are not speaking. Get the boring details written down.

• Can the house be sold and something smaller bought instead?
• Who pays the rates, the insurance, the body corporate levies and the repairs?
• What brings the arrangement to an end: death, remarriage, someone moving in, aged care?
• If a bond is needed for aged care, can money come out of the house, and whose share does that come off?
• Who is in charge of all this? Your partner on their own is in an awkward position. A child alongside them, or someone independent, usually works better.

Or don't leave everything to your partner at all

Sometimes the simplest answer is the right one. Leave your partner enough to live on comfortably and leave a set share straight to the children.

Start with the title to your house, because most people have never checked it. If you own as joint tenants, your half goes to the other owner automatically the moment you die and your will has no say in it whatsoever. If you own as tenants in common, say half each, your half falls into your estate and your will decides where it goes. Your partner can still live there.

Changing from one to the other is a short form lodged with the titles office. It is cheap, it is quick, and you do not need the other owner's agreement. In terms of value for money it is probably the best thing on this page, and almost nobody knows about it.

Leaving it in a trust instead

Your will can set up a trust rather than handing money to a person. Your partner gets the use of it and the income from it for the rest of their life. What is left when they die goes where you said, because it was never theirs to give away.

The thing that matters here is who holds the controls. If your partner is the only one running a trust they benefit from, and they can pay themselves the capital whenever they feel like it, you have just given it to them with extra paperwork. Split the two roles. Your partner takes the benefit; a child, or somebody independent, makes the decisions.

Trusts can also save tax where grandchildren are involved, and give a child some cover if their marriage or their business goes wrong. There is a separate guide on this site that goes into that side of it.

Mutual wills, and why I am careful about them

People often ask for these by name. A mutual wills agreement is a contract between the two of you: we each sign a will in these terms and whoever survives will not change theirs. It is not the same as mirror wills, which are just two matching wills that either of you can rewrite on a Tuesday afternoon.

To have any force it has to be a separate signed agreement, both of you advised properly and separately, setting out exactly which assets are caught and what the survivor can and cannot do.

Now the part that gets glossed over. The agreement does not stop the survivor making a new will. If they break it, the new will still works. What your children get is the right to sue the estate, which means paying a solicitor, proving an agreement signed decades earlier, and fighting a grieving widower in court. Sometimes the money has already gone. I do prepare them, but rarely on their own, and I tell people plainly what they are buying.

The other problem is that they lock the survivor in. Someone who lives another twenty-five years may have very good reasons to change things, and they will not be able to.

The assets your will never touches

A good part of what most people own does not pass under their will, and this is where careful plans quietly come apart.

Superannuation is the big one. It is paid out by the super fund, not by your will, and if there is no valid binding nomination in place the fund makes the call. A new partner can qualify. Nominating your estate brings the money back under your will where your instructions apply. Bear in mind these nominations often lapse after three years, so they need checking.

• Anything held jointly, bank accounts included, goes straight to the other owner.
• Assets in a family trust are not yours and are not in your estate. What matters is who takes over running the trust, and that has to be dealt with specifically.
• Shares in a company can be caught by the company's own documents, which may override what your will says.
• Life insurance held outside super is paid to whoever is nominated on the policy.

Two things that are not legal documents

Your enduring power of attorney decides who looks after your partner's money if they lose capacity later in life. Somebody holding that power can sell a house and shift money around long before anyone reads a will. It deserves more thought than it usually gets.

The second is just talking to people. A short letter explaining why you have done what you have done, and a conversation with the adult children while everyone is still here, heads off most of the fights I see. Arrangements fail quietly. Surprises do not.

What none of this can do

Every option above has a limit. You are better off hearing them now than finding out later.

The main one is that a court can override your will. In Queensland a spouse, a de facto partner, a child or a dependant can apply to the Supreme Court for more if they say they have not been properly provided for. The time limits are short, so anyone thinking about it needs advice quickly. Careful planning lowers the risk and makes a will much easier to defend. It does not close the door.

• Your survivor's new partner can bring that same kind of claim against your survivor's estate.
• Leaving your partner a house to live in but not enough to live on can itself provoke a claim. Generosity in the right places is part of the protection.
• Mutual wills give your children a court case, not a guarantee.
• If your surviving partner remarries or moves in with somebody and it later falls apart, whatever they own personally goes into the pool. Assets sitting in a trust are better protected, but not untouchable.
• If a new will is signed when someone is confused, or under pressure from a new spouse, it may well be invalid. Proving that afterwards is slow, expensive and unpleasant.
• Trusts need feeding: yearly accounts, tax returns, decisions. On a modest estate that can cost more than it saves.
• Handing the house to the children now is usually a mistake. Stamp duty, capital gains tax, the pension, and their creditors or their divorce all become your problem, and you no longer control where you live.
• Nothing survives being ignored. Titles get changed when people refinance, nominations expire, second marriages happen. A plain plan looked at every few years beats a clever one signed once and filed away.

What usually works

For most Queensland couples with children from an earlier relationship, it ends up being a combination rather than one clever device. Roughly this:

• Hold the home as tenants in common rather than joint tenants.
• Give your partner real security in the house, with the details spelled out.
• Send your share to the children when your partner dies or remarries, through a trust if the figures justify it.
• Keep benefit and control in different hands.
• Deal with your super deliberately, and check the fund has accepted the nomination.
• Provide properly for everybody who could bring a claim, so the plan stands up rather than just looking tidy.
• Write down your reasons, tell the family, and look at it again every few years.

If you want to talk it through

We do a lot of this work for blended families out of our Golden Beach and Scarborough offices: sorting out how the house is held, rights to live in a home, testamentary trusts, mutual wills where they genuinely fit, super nominations, powers of attorney, and a frank view on how likely a claim is. Bring whoever you want with you.

Give us a ring on 0488 340 853. We will tell you what the whole thing costs before we start.

Protecting your children's inheritance — common questions