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Does marriage, divorce or separation affect my Will?

Whether it is the start of a relationship or the end, it is important to understand the effect marriage, divorce or separation can have on your Will.

Your Will should reflect any significant personal circumstances or relationship changes throughout your lifetime.

Updating your Will may not be at the forefront of your concerns when these life changes happen; however, a new or revised estate plan should become one of your top priorities.

1. Marriage

Many are unaware that their Will becomes invalid as a result of marriage. This is because the law presumes that spouses intend to provide for each other. Therefore, it is important that Wills are updated to reflect this.

If you fail to update your Will upon marriage, your estate will be distributed as if you had no Will in place and distributed in accordance with legislation and the rules of intestacy (also known as dying intestate).

This becomes a major issue, especially if you have children from a previous marriage or other people you wish to provide for.  

Therefore, it is worth taking control of what happens to your estate whilst you are alive.

My partner and I are engaged. Is there any way I can prevent my Will becoming revoked upon marriage? 

If you are thinking about getting married in the future or are recently engaged, we recommend that you still get your Wills prepared.  

To ensure the Wills you sign together before you marry, remain valid after your marriage, we recommend inserting a clause that expressly states that your Wills are made “in contemplation of your marriage”. This clause will prevent your Wills from becoming revoked

Apart from this one exception, you will need a new Will if you marry to reflect your new wishes.

2. Divorce 

Divorce also affects your Will, but it does so differently in each Australian state and territory.

In Queensland, when a person makes a Will and then later divorces, any provision appointing their former spouse as executor, trustee and/or guardian will be revoked and taken to have been omitted from the Will. 

Further, any gifts or distribution made in favour of the former spouse are automatically revoked upon divorce. 

However, all other provisions in a Will not relating to the former spouse, will generally remain valid and effective.

Accordingly, even though divorce revokes benefits to former spouses, the outcome can lead to the estate being administered in a way the Will-maker did not intend.  

Once the former spouse is removed from the equation, they may not be replaced by those the Will-maker intends to provide for.

This also creates risks of family provision applications being made against your estate, in the event certain beneficiaries are not provided for.

We recommend that your Wills are reviewed upon divorce, to ensure your current wishes are reflected.

Should I wait until my divorce is finalised before making a new Will?

We sometimes see people preferring to hold off preparing a new Will or reviewing their existing Will, until their divorce and/or property settlement has been finalised. 

As divorce revokes the provisions to your former spouse in your Will and not your whole Will, you do not need to wait for your divorce to be finalised to prepare a new Will.

Waiting for your divorce to be finalised is never a good reason to delay your estate planning. Your Will should clearly state your new intentions with the control and distribution of your estate.

Delays can carry a lot of risk, especially if you have separated and divorce proceedings have not been finalised.

3. Separation

Unlike divorce, marriage separation does not have an effect on your Will.

The period of separation that occurs prior to divorce is an important time to ensure your Will reflects your changed circumstances.

If you no longer wish to provide for your ex-partner, then one of the most important things you should do after separating is change your Will and revoke any Enduring Power of Attorney that you may have put in place, appointing your ex-partner.  

Otherwise, if you pass away before you have made the changes to your Will, and your ex-partner was named as a beneficiary of your estate, he/she will still be the beneficiary.

Similarly, if your Will names your spouse as your executor, they will be entitled to take up that role upon your passing, regardless if you wanted them to or not.

When should I prepare a new Will or update my existing Will?

Remembering to review and update your Will is just as important as creating one.

We recommend reviewing your Will every two to three years, or anytime there is a major event in your life (e.g. a birth, death, marriage, divorce, separation, acquiring or disposing of property, etc.).

If you need assistance with the preparation of a Will, or clarification on the risks to your estate after a marriage, divorce or separation, please do not hesitate to contact us.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Duncan MacDougall

Written by—

Duncan MacDougall

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