by: Kate Bradley, Partner | Georgia Johnston, Senior Associate
7 September 2026
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The Supreme Court has recently issued an important decision, Rimmer v Wilton [2026] NZSC 122, that will be of interest to anyone who has entered a contracting out agreement (sometimes called a “prenup” or section 21 agreement) or who is thinking about their estate planning.
The central question was whether a contracting out agreement under the Property (Relationships) Act 1976 (PRA) could prevent a surviving partner from claiming additional entitlements under the intestacy rules that apply when someone dies without a will.
The case involved de facto partners David Rimmer and Carolyn Wilton, who entered a contracting out agreement in 2002. The agreement dealt with a property on Moumoukai Road, dividing it according to each partner’s capital contributions. Importantly, it also gave the surviving partner a life interest in the other’s share of the property, meaning they could continue living there but would not own that share outright. The agreement stated it was a “full and final settlement of all claims” each party might have against the other under any statute. Mr Rimmer died without a will in 2016. Ms Wilton then claimed entitlements both under the agreement and under the intestacy rules, including a share of Mr Rimmer’s estate.
The question for the courts was whether Ms Wilton was limited to what the agreement gave her, being her own share of the property plus the life interest, or whether she could also claim a further portion of Mr Rimmer’s share through the intestacy rules.
The High Court and Court of Appeal both found in Ms Wilton’s favour. The Supreme Court disagreed.
In allowing the appeal, the Supreme Court held that a surviving partner can keep both what their contracting out agreement provides and what they are entitled to under a will or the default rules that apply when someone dies without one. However, in this case, the Court found that Ms Wilton had agreed, through her contracting out agreement, not to make further claims against Mr Rimmer’s estate. That meant she could not rely on both the agreement and the intestacy rules; her entitlement was limited to her own share of the property and the life interest the agreement gave her.
The Court confirmed that parties can, through a properly drafted contracting out agreement, give up their right to claim under the intestacy rules. In other words, what your agreement says can determine what you receive when your partner dies, even if it results in less than you would otherwise be entitled to under the law.
This decision is a timely reminder of why it is so important to make sure your contracting out agreement and your will work together. Mr Rimmer could have left his share of the property to Ms Wilton in a will, but he did not. Without one, the agreement governed and Ms Wilton received significantly less than she would have under the intestacy rules.
If you have a contracting out agreement, or if your circumstances have changed since you entered one, it is worth checking that your documents still reflect what you actually want to happen.
Our team can help you understand what your agreement says, what it means in practice, and whether it still provides the protection you need. We can prepare or review contracting out agreements, ensure your agreement and will work together, identify risks early, and put practical safeguards in place for you and your family. A review now can help prevent uncertainty and costly disputes down the track.
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