In Australia, divorce and separation can significantly impact your will. The effects of divorce on a will vary by jurisdiction, making it essential to update your will after a divorce to ensure your wishes are honoured. The rules for how divorces affect wills are different in each state and territory throughout Australia, so you need to understand exactly what is going to happen to your will if you go through a divorce or separation. This guide outlines how divorce affects wills and provides crucial information on what steps to take after separation.
Can a legal separation affect my will?
Legal separation alone does not impact the validity of your will. If you’re legally separated but not yet divorced, your ex-spouse may still act as executor if previously appointed in your will. It is important to update your will if divorce proceedings are underway, as separation does not automatically invalidate or alter your existing will.
Can a separated spouse inherit?
If your will names your spouse as a beneficiary, they may still inherit assets, even if you are separated, unless you update the will. Without a will, your ex-spouse could inherit everything under the laws of intestacy. To prevent unintended inheritance by your ex, it is crucial to update your will during or after separation.
Is a will still valid after divorce? (Will After Divorce in NSW)
The validity of a will after divorce depends on your location in Australia, with significant variations between states and territories. In New South Wales (NSW), a divorce typically revokes:
- Bequests to a former spouse
- Appointment of a former spouse as executor, trustee, or guardian
However, some provisions may remain in effect, depending on your intentions and any court rulings.
Can a divorced spouse inherit?
If you do not update your will post-divorce, your ex-spouse may still argue they should inherit based on your intentions, especially if the will was not amended. Divorce generally revokes bequests to a former spouse, meaning they will no longer inherit unless specified otherwise in your will.
For instance, if your will leaves your house to your ex-spouse and you pass away without making changes after the divorce, they may still inherit the house unless you update your will to reflect your new intentions. To avoid such unintended inheritances, it’s essential to update your will post-divorce.
Situations that affect your will
After a divorce, some provisions of your will may remain valid, depending on the circumstances:
- Trustee Appointments: If you have named your ex-spouse as a trustee for your children, this provision often remains unless changed.
- Court Consideration: If the court believes your intention was for your ex-spouse to inherit, the bequest may still stand.
- Executor Appointments: If you do not update your will, your ex-spouse may continue to be named as executor despite the divorce.
If you have concerns about these provisions, it’s essential to seek professional legal advice to ensure your estate planning accurately reflects your wishes.
Amending your will after a divorce
To ensure your will aligns with your post-divorce wishes, consider the following steps:
- Creating or Updating Your Will: You can either draft a new will or amend your current will with a codicil. Both must be signed and witnessed according to local laws.
- Appoint New Executors: If your ex-spouse was named as executor, appoint a trusted individual to handle your estate.
- Designating Guardians: If you have minor children, appoint new guardians if your ex-spouse was previously designated.
- Updating Beneficiaries: Remove your ex-spouse from any beneficiary roles and ensure that your new beneficiaries are clearly named.
These updates ensure your estate plan reflects your current wishes and avoids unintended consequences.
Are there any other documents affected by a divorce?
In addition to updating your will, review and update the following estate planning documents:
- Power of Attorney and Advance Care Directives: Adjust these documents to reflect your current preferences for decision-making.
- Beneficiary Designations: Update your life insurance, superannuation, and other financial accounts to remove your ex-spouse as a beneficiary.
- Trusts and Jointly Held Properties: Revise trust documents and update ownership titles for jointly held properties.
These updates are essential to ensure your estate plan is in line with your current circumstances.
Owen Hodge Lawyers has decades of experience in will writing
Answering the question, “does divorce invalidate a will?” can seem complicated and can depend on a number of factors. A de facto relationship and ongoing property settlements can also further complicate matters. That’s why we recommend speaking to a lawyer regarding your estate planning and family law concerns if you find yourself in this situation.
Owen Hodge Lawyers are here and ready to help you modify your will if you are legally separated or if you are seeking divorce. Give us a call today on 1800 770 780 to schedule a consultation. We’re also here to answer any additional questions about how children from a previous relationship can impact your will or how to appoint a Power of Attorney.