NEW ZEALAND Law and Practice Contributed by: Violet Yu, Jonathon Russell and Sandy Chen, Cone Marshall Limited
There is a range of legal and estate planning tools to assist with individuals who may live longer but have lost mental capacity due to old age. While they still have capacity, they have the option to plan for the contingency of losing capacity by setting up endur - ing powers of attorney for both property and personal care and welfare. Public financial education, led by organisations like the Retirement Commission and Sorted, also plays a vital role in promoting financial literacy and long-term planning. In light of the longer average life span, the trust law in New Zealand has also been adjusted: the latest Trusts Act 2019 repealed the Perpetuities Act 1964, which confined the perpetuity period to 80 years. The Trusts Act 2019 currently imposes a maximum trust period of 125 years. 9. Planning for Non-Traditional Families 9.1 Children New Zealand’s Status of Children Act 1969 ensures equal treatment for all children, eliminating distinc - tions like “illegitimacy”. • Children born out of wedlock – treated equally to children born within marriage for all legal purposes, including inheritance. • Adopted children – where a child is formally adopt - ed under the Adoption Act 1955, they are treated as the legal child of the adoptive parents for suc - cession and trust purposes. Māori customary care arrangements (whāngai) are not legal adoptions, and the child usually remains the legal child of their birth parents, so their rights can differ and depend on the specific context (eg, Māori land). • Surrogate children – the surrogate mother and her consenting partner (if any) are the legal parents at time of birth. The intended parents must adopt the child to gain legal parenthood. • Posthumously conceived children – may be rec - ognised as the deceased’s children if conceived via assisted reproduction with consent, but any inheritance rights will depend on the timing and on
the terms of the deceased’s will, and the law in this area remains unsettled. Where a parent has not provided for their child, living at their death, in their will (eg, a biological child born out of wedlock), that child may be able to bring a claim for further provision, against the deceased parent’s estate, under the Family Protection Act 1955 (see 2.3 Forced Heirship Laws ). With respect to trusts, the terms of the trust deed, including its beneficiaries, can be drafted to include specific children. There is no obligation for a settlor to include all their children as beneficiaries of a trust. 9.2 Same-Sex Marriage Same-sex marriage has been legal in New Zealand since August 2013. Previously, “civil unions” were more widely used. Same-sex spouses and civil union partners are treated in the same way as opposite-sex couples for most relationship property, succession and tax purposes. 9.3 Cohabitation and Unmarried Couples New Zealand recognises de facto relationships (includ - ing same‑sex and opposite‑sex couples) where two adults live together as a couple but are not married or in a civil union. After three years, the Property (Rela - tionships) Act 1976 generally treats de facto partners like married or civil union couples, with equal sharing of relationship property on separation or death, sub - ject to limited exceptions. On death, a surviving de facto partner has broadly similar rights to a spouse or civil union partner on intestacy, and may elect to claim relationship prop - erty instead of taking under the will or intestacy, while shorter relationships attract more limited rights unless there is a child of the relationship or significant con - tributions. With respect to tax, New Zealand taxes individuals rather than households, so being in a de facto relationship does not change income tax rates or create joint filing obligations.
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