Family Proceedings Act 1980

Miscellaneous provisions

181: Incidence of maintenance due by estate of deceased party

You could also call this:

"What happens to maintenance payments when the person who pays them dies"

Illustration for Family Proceedings Act 1980

When someone who has to pay maintenance dies, you want to know who pays the maintenance. The maintenance payments will come from the deceased person's estate, which is the property they left behind. The way the payments are made can depend on what the deceased person's will says. If the will does not say how the payments should be made, they will be made in the same way as other debts the deceased person had. But if the court has ordered security to be given for the payments, they will be paid from the part of the estate that the security is over. The court can decide how the payments are made from the estate, and it can change its decision at any time. You can ask the court to make an order about the payments if you are the personal representative of the deceased, or if you are interested in the estate, or if you are the person who is supposed to get the maintenance. The court will listen to the people who may be affected by the order before making a decision. If the personal representative of the deceased has already distributed some of the estate, that distribution will not be changed because of an application to the court. The court can make an order on the condition that certain things are done, and it can change an order it has already made. The person who is applying for the order can be the personal representative, someone interested in the estate, or the person who is entitled to the maintenance, as stated in section 180(3).

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This page was last updated on 26 November 2025

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM41892.

Topics:

Family and relationships > Children and parentingMoney and consumer rights > Debts

180: Recovery of money from estate of deceased party, or

"Getting money owed to you from someone who has died"

182: Court may make orders as to settled property, etc, or

"Court can decide how to share property and money in a marriage or civil union"

Part 11Miscellaneous provisions

181Incidence of maintenance due by estate of deceased party

The incidence of the payments under any order to which section 180(3) applies shall fall upon the assets of the estate of the deceased as follows:
where the will of the deceased contains directions relating specifically to the incidence of those payments, the incidence of the payments shall fall upon the assets of the estate in accordance with the directions of the will:
subject to any such directions in the will of the deceased, the incidence of the payments shall fall upon the assets of the estate in the same manner as would the incidence of the unsecured debts of the deceased:

provided that the incidence of any such payments in respect of which security has been ordered to be given under this Act shall fall primarily on the assets of the estate over which security has been ordered to be given.

Notwithstanding anything in subsection (1) or in the will of the deceased, but subject to section 180(3) to (6), the court may at any time—
fix or vary as between the assets of the estate of the deceased, in such manner as it thinks fit, the incidence of the payments under an order to which section 180(3) applies:
exonerate any part of the estate, in whole or in part, from the incidence of the payments under any such order:
adjust the burden of the payments under any such order among the persons who are or may be beneficially interested in the estate of the deceased in such other manner as the court thinks fit.

The court may from time to time vary an order made under subsection (2) in such manner as the court thinks fit.
An order under subsection (2) or subsection (3), or any provision of any such order, may be made on and subject to such terms and conditions as the court thinks fit.
An application for an order under subsection (2) or subsection (3) may be made by the personal representative of the deceased or by any person who is interested in the distribution of the estate or by the person who is entitled to the benefit of the order to which section 180(3) applies.
Before making any such order, the court shall hear such of the persons who may be affected by the order as it thinks necessary, and may for that purpose direct any personal representative to represent, or appoint any person to represent, any such person.
No distribution of any part of the estate lawfully made before the personal representative receives notice that an application for such an order has been made to the court shall be disturbed by reason of the application or of any order on the application, and no action shall lie against the personal representative by reason of his having made such a distribution.