In Australia, when you get married, your existing will becomes invalid. Many Australians are unaware that entering into wedded bliss means that the will they previously had in effect no longer matters, and they will need to create a new last will and testament.
But what happens if you create a will after you get married, and then that marriage breaks down? Is a will still valid after divorce? In some cases, a divorce can also invalidate your will. However, in other situations, your will remains in effect, but gifts or bequests to your ex-spouse are no longer made, unless the courts believe that you intended for your former partner to still inherit.
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. Keep reading to learn more about the effect of divorce on wills (NSW) or speak to one of our wills and estate lawyers.
Can a legal separation affect my will?
Only divorce affects your will, not a legal separation. If you pass away while your divorce is pending or while you are separated, your soon-to-be ex-spouse could still serve as an executor of a will if that is what your will specifies.
Can a separated spouse inherit?
If you left property or assets to your spouse, he or she will also inherit all of this money and assets even if you are legally separated or would have no longer chosen to bequeath the property/assets to them. And if you die without a will, your assets will be distributed following the rules of intestacy – which means your ex-spouse could inherit your whole estate.
Because a marriage separation does not have an impact on your will, changing your will while a divorce is pending is essential. In fact, this may be one of the most important times to contact an estate planning lawyer in order to create a new will to specify your wishes.
Is a will still valid after divorce?
Divorce is the final and permanent severing of your marital union, and it will have an impact on whether your will is valid or not. However, the effect of divorce on a will depends on where you are in Australia.
Some states and territories declare a will invalid as a result of a divorce and others do not. This means your will could remain in effect after divorce, depending upon where you live. In NSW, a divorce does revoke parts of the will, including assets distributed to the former spouse and any appointment of them as executor, trustee or guardian.
Can a divorced spouse inherit?
When a will remains in effect, this does not mean that any gifts you gave your ex-spouse are automatically going to remain valid. In fact, a divorce will almost always revoke provisions that are in favour of a former spouse.
After divorce, your ex will no longer serve as an executor even if he or she is named as one, and your ex will no longer inherit property no matter what your will says. This is true except in the following situations.
Situations that affect your will
Provisions of your will that name your former spouse as a trustee of property left for your children or your spouse’s children will typically remain in effect. Your spouse will still get to be the trustee unless you change your will and specify otherwise. Any grants of power that were given to your former spouse, that are exercisable only in favour of the kids, will generally also remain in effect even after a divorce.
If the courts believe that your intention was to leave a gift to your former spouse, then the gift will still be considered valid, and your spouse will get to inherit. Your ex, as a potential beneficiary, is going to be able to make an argument to the court to suggest that you still meant for him or her to inherit even though you were no longer married.
If you re-publish the will after your divorce has gone through and you do not change the appointment of an executor or alter the terms of the will to disinherit your spouse, then all of the provisions of the will giving your spouse power or property will remain in effect.
Amending your will after a divorce
- Legal Process for Amending or Creating a New Will
To amend your will after a divorce, you can either create a new will or update the existing one with a codicil. If you opt for a new will, ensure it’s properly signed and witnessed according to your local laws. A codicil, which is a document that makes changes to an existing will, must also be signed and witnessed to be valid. - Considerations for Appointing New Executors, Guardians, and Beneficiaries
Executors: Choose new executors if your former spouse was previously named. Executors handle the distribution of your estate, so selecting someone trustworthy and capable is crucial.Guardians: If you have minor children, appoint new guardians if your ex-spouse was previously designated. This ensures your children will be cared for by someone you trust.Beneficiaries: Update your beneficiaries to reflect your current wishes. Remove your ex-spouse from any beneficiary designations and include new beneficiaries as needed.
Updating your will ensures it aligns with your current situation and preferences after a divorce.
Are there any other documents affected by a divorce?
- Estate Planning Tools
Update your power of attorney and advance care directives to reflect your current wishes for decision-making in case of incapacity. - Beneficiary Designations
Review and update beneficiaries on life insurance, superannuation, and other financial accounts to ensure your ex-spouse isn’t listed unintentionally.
- Trusts and Jointly Held Properties
Revise trust documents to remove your ex-spouse if needed and adjust titles for jointly owned properties as per the divorce settlement.
Making these updates ensures your estate plan reflects your new circumstances and preferences.
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 can also further complicate matters. That’s why we recommend speaking to a wills and estate lawyer 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 have recently divorced. 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.