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Separated or divorced? Don’t forget your Will

When a relationship ends, your Will is probably one of the last things on your mind.

There are financial arrangements to resolve, parenting matters to consider and, sometimes, lengthy court proceedings to navigate. Estate planning can easily be pushed down the list.

But separation is an important time to stop and ask:

Does my Will still reflect what I want?

The answer may not be as straightforward as you expect.

Separation and divorce are not the same when it comes to your Will

Simply separating from your spouse or partner does not, by itself, change your Will.

That means that if you made a Will while you were together, the arrangements in that Will may continue to be relevant during your separation.

This is particularly important for people in de facto relationships. Ending a de facto relationship does not have the same statutory effect on a Will as the termination of a marriage under the ACT's wills legislation.

Divorce is different.

Under the ACT's Wills Act 1968, when a marriage is terminated after a Will has been made, certain provisions in the Will relating to the former spouse no longer apply*. This can include gifts to the former spouse and their appointment as an executor, trustee or guardian. There are exceptions where the evidence shows that the person intended those provisions to continue.

An enduring power of attorney is dealt with separately under ACT legislation. In the ACT, where a spouse has been appointed as an attorney and the marriage subsequently ends by divorce, the enduring power of attorney is revoked in relation to that former spouse. In NSW, the position is different. Divorce revokes certain provisions relating to a former spouse in a Will, including gifts and their appointment as executor, trustee or guardian, but it does not automatically revoke their appointment as an attorney or enduring guardian**.

What could happen if you do nothing?

The consequences of leaving your estate planning documents untouched can be significant.

For example, you may have made a Will years ago naming your spouse as your executor or leaving them part of your estate. Your circumstances may have changed considerably since then, but your documents may not have caught up.

Equally, the automatic effect of divorce legislation can create an unexpected problem. If your former spouse was the only executor named in your Will, their appointment may no longer operate after divorce. That can leave your loved ones facing additional complications when your estate needs to be administered.

Your financial circumstances may also have changed significantly during the separation process. Assets may have been sold, transferred or divided, property ownership may have changed, and your intentions for your children or other beneficiaries may have evolved.

Your estate plan should reflect those changes.

What about superannuation, property and other assets?

Your Will is only one part of your estate plan.

Separation and divorce can affect the way assets are owned and dealt with, so it is important to consider the broader picture — including property ownership, superannuation nominations, life insurance, trusts and powers of attorney.

These arrangements do not necessarily operate in the same way as your Will, which is why updating one document without considering the others may not achieve what you intend.

A fresh start should include your estate plan

Separation is a significant change in your life. Once the immediate legal and financial issues have been dealt with, reviewing your estate planning documents can help ensure that they reflect your circumstances and your wishes moving forward.

It is worth taking the time to review:

  • your Will and the people you have appointed under it
  • your executors and beneficiaries
  • your enduring power of attorney
  • your superannuation and other beneficiary nominations
  • ownership of property and other significant assets
  • any other estate planning arrangements that may have been affected by the end of your relationship.

The rules can differ between Australian states and territories, so it is important to obtain advice about the jurisdiction that applies to you.

If you have recently separated or divorced, we recommend obtaining advice about whether your estate planning documents still reflect your wishes.

We would be happy to refer you to a solicitor who specialises in estate planning and can help you with reviewing your arrangements.

* Wills Act 1968 (ACT) s 20A; Powers of Attorney Act 2006 (ACT) s 59.

** Succession Act 2006 (NSW) s 13.