How do Separation and Divorce affect my Will?

If you and your partner are considering separating or going through a divorce, it is important to know how this affects your will.

Major changes in your life can have an automatic bearing on the legalities of your will, meaning that your wishes may not be carried out should you pass away. Working with a divorce lawyer during this process can help you avoid common pitfalls.

How marriage affects wills

Before we get to divorce, it is important to note that the act of marriage itself can invalidate a will. If you did not update your will to reflect your new relationship status, there is a good chance your estate can be contested.

The most usual case is that your spouse will not be listed on your will, but by law they are still entitled to a large part of your estate. In many cases, this may be what you want, but it could cause problems if you have children from a previous marriage who may be affected.

You should speak to a lawyer about making a new will after you marry, even if you want it to have the same terms as the old one.

How separation affects wills

When you separate from your spouse, there is no impact on your will. Should you pass away while separated, your spouse will retain any of the estate left to them and may still act as your executor.

As you need to be separated from your spouse for at least 12 months in New South Wales to be granted a divorce, this is not always ideal. To make sure that your spouse is off your will, speak to a lawyer about changing your will as soon as possible.

How divorce affects wills

The effect of a divorce on a will changes depending on where in Australia you are. In New South Wales, the effect is to treat your former partner as if they passed away before you.

If your will names your spouse as executor, or names them to receive something from your estate, these instructions will be ignored. The rest of your will’s instructions will be carried out.

There are times when your spouse can challenge this in court and win, especially if there is evidence that you would want them to carry on in this role despite your divorce. This evidence can be included in the will itself, or it may come from external sources.

One main exception to excluding your former spouse from a will is if they are named as a trustee on a trust that will benefit someone else, such as your children.

How to change your will

To make sure your will is up to date and legally binding, it is important to speak to a lawyer about getting things done by the book. Because of the legal implications of a will, there are many specific requirements to follow. If you do not know about these, and make a will that does not follow the rules, perhaps by using vague or ambiguous wording, it may be deemed invalid and your estate could be divided by the court rather than by your wishes.

While you can update your will with codicils, it is normally suggested that you make a completely new will when you get divorced.

The benefits of a lawyer

Having a lawyer help with your will is recommended, and they can also help with other areas of your separation to make sure you are represented fairly.

A divorce lawyer’s job is to get you a fair and just settlement. While you can divide assets with your ex-partner by mutual agreement, having a lawyer at least look over the terms (if not helping to shape them) could help you considerably.

To learn more about divorce and asset settlement, download our free ebook guide.

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