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Marriage, Separation & Divorce – What happens to my Will?

Karina Penfold ||

Marriage, divorce and separation are important life events. They can have significant legal consequences when it comes to your Will and can lead to unintended outcomes on your death. It is important that you understand why these life events require you to review your Will.

Marriage

In New South Wales marriage invalidates or revokes your Will.

Failing to make a new Will means that you die ‘intestate’. This means that you die without a valid Will and the rules of intestacy will apply to your estate.

This may result in a substantial part of your estate passing to your spouse. For many this may not be the desired outcome should for example you have children from a previous relationship, perhaps a vulnerable or disabled child or sibling who requires life-long care or other family members that are dependant on you or that you simply wish to provide for.

If your earlier Will leaves gifts to your spouse or if you have appointed your spouse as your Executor or Trustee, these clauses will survive marriage, however, the balance of the gifts will be revoked.

The exception to this is if you made a Will prior to marriage which clearly states that it is made in contemplation of your marriage.

Separation

While separation has no legal effect on your Will it is certainly a trigger to review your Will.

Separation is one of the times in your life where you will be making important decisions in respect of your living arrangements, the division of matrimonial property and the care of your children (if any). Reviewing your Will needs to be added to the list to consider and account for your change in circumstances.

If you fail to update your Will after your separation and pass away, your estranged spouse will receive any gifts that you have made to them in your Will. If you have appointed your estranged spouse as your Executor, your spouse is free to take on this role upon your passing and given the breakdown of the relationship, this is likely a very undesirable outcome.

Divorce

Divorce affects your Will differently to that of marriage and separation. In New South Wales, divorce makes any gifts to your former spouse invalid. It also revokes your former spouse as your Executor.

Not all clauses are revoked and there are some that will survive divorce such as:

  • If the Court believes that you intended to leave a gift in your Will to your former spouse
  • If you have re-executed your earlier Will after your divorce and left intact the clauses relating to your former spouse
  • If you have appointed your former spouse as the trustee of property left in your Will for the benefit of the children you have with your former spouse

Whilst divorce does not revoke a Will in its entirety, it is important that you make a new Will so that your intentions relating to your former spouse and other beneficiaries are clear.

It is also important to note that a property settlement dealing with your matrimonial pool of assets often comes before or accompanies a divorce application. A change in ownership of assets and obligations always warrants a Will review.

Reviewing your Will when embarking on a significant relationship, getting married or going through a breakdown of a relationship is a must as it allows you the opportunity to take control and have some certainty as to your testamentary intentions.

If you think you may need to change your Will in light of the above information, please do not hesitate to reach out to our  Estates & Succession team at Coleman Greig Lawyers who are always happy to help.

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