Marriage, divorce or something in between – how it impacts your Will

with No Comments

By Rehana Richard

When we think of our personal relationships, Wills are probably not the first thing that come to mind. That’s completely understandable, I get it! However the status of your relationship can have a serious impact on your Will and assets. Understanding the impact on your Will at different stages of your relationship, is vital to protecting your assets and loved ones.

Marriage

Many people are unaware that marriage automatically revokes all Wills you have made before that time. This is the same for registering a civil union or civil partnership. For example, couples who have made a Will while in a de facto relationship and who later decide to marry or register a civil union or partnership, may have inadvertently revoked their earlier Will. The only exception is if the earlier Will was expressly made “in contemplation of” that particular marriage, civil union or civil partnership.

Revocation of a Will means that the person is ‘intestate’. The rules of intestacy will determine how that person’s estate will be divided upon death, which can have harsh and unintended consequences and the rules differ between each state and territory in Australia.

Separation

While it may not be a high priority while going through a separation or divorce, it is critical that this change in your circumstances is reflected by a change to your Will.

Unlike divorce, separation does not have a direct impact on your Will. The period of separation before a divorce is finalised is one of the most critical times to ensure your Will is updated. If you separate and then die before updating your Will, your spouse will still inherit any property you gifted to them under your Will that you made while together. Likewise, if you have named your spouse as the executor of your Will, that appointment still stands regardless of whether it is contrary to your wishes. If you have finalised a property settlement with your spouse, but not formally divorced, that of itself is not enough to revoke an earlier Will and you will need to make a new Will.

Divorce

In Australia, the law which covers the impact of divorce on a Will differs between each state and territory. In the ACT, divorce only revokes parts of your Will which benefit your former spouse. For example, if you appointed your spouse as an executor or left to them a gift of your estate (but note there are some exceptions to this as well). The law treats that gift as if your spouse had died before you. Depending on how your Will was initially drafted, this may have unusual outcomes or even result in intestacy.

De facto relationship

Entering a de facto relationship does not have the same impact on your Will as marriage. However as time goes on, your de facto partner may develop certain rights in respect to your property, which might conflict with the terms of your Will. In addition, if you fail to update your Will to reflect the change in your relationship status, you place your estate at risk of your de facto partner making a claim after your death seeking further provision out of your estate.

Simply having a Will may be of little benefit if it no longer reflects your relationships or life circumstances. As you can see there are a variety of ways in which significant changes to your relationship status can impact your Will.  It is worth having your lawyer review the status of your Will following any significant changes in your life such as marriage, divorce or something in between.

Rehana Richard is a lawyer at DDCS Lawyers, 18 Kendall Lane, New Acton, Canberra City ACT 2601 and can be contacted on (02) 6212 7600 or via email estates@ddcslawyers.com.au.

Leave a Reply