Under Australian law, entering into a new marriage invalidates your existing Will. This is a fact that many Australians are unaware of and it means that you need to sit down and create a new Will. Does that mean divorce has the same effect on your Will as marriage? That is a slightly more complicated situation, even though many people assume divorce does the job for them.
Difference Between Divorce Vs Separation
A separation is not a legal severing of your relationship, but divorce is. While the former signals an end to the relationship, you must remain separated for a period of at least twelve months before you can begin the divorce proceedings.
A separation does not affect the status of your Will because it is not the legal severing of the relationship that divorce is. However, suppose you do not want to leave any of your belongings or assets to your separated partner and you do not expect a reconciliation. In that case, you can consult a will and estate lawyers to change your Will. If applicable, you will also need to revoke any Power of Attorney rights given to your former partner. If you pass away before you make changes to your Will your ex-spouse would remain the beneficiary and if you listed them as Power of Attorney or Executor they would be expected to fulfil this role.
As you must remain separated for one year before you can proceed with a divorce, there is a window that leaves your assets at risk in the case of death. It is important to remember that this includes your Superannuation benefits as well. If you are changing your Will, but you are only recently separated be sure to instruct your will and estate lawyers that you wish this Will to be upheld after a divorce is finalised. The last thing you want is for your death to result in a will dispute or further down the line, to have a new spouse left challenging a will. Sadly, death brings out a lot of ugly emotions and estate litigation lawyers can help untangle it, but it's best to avoid this altogether by changing your Will as soon as possible.
Does Divorce Automatically Cut Your Spouse Off?
A divorce can invalidate a Will, but only in some cases. There are situations where your will may remain as is. However, the bequests made to your ex-spouse are no longer honoured. Unless, of course, the courts have reason to believe you intended for your ex-spouse to still receive those gifts. In NSW, divorce revokes any parts of your Will that include your ex-spouse, that includes their appointment as executor, etc.
The best course of action following a separation that is leading to divorce is to change your Will legally. This will ensure your surviving family members avoid a will estate dispute. Deceased estate lawyers advise a standard Will settlement takes 12 months following the death, a dispute could extend that for some time.
Does An Ex Still Get Rights If You Pass Away, Even If They Are Out Of Your Will?
While contesting a will is technically an option, if you have legally changed your Will this should be sufficient evidence of your wish that they do not receive your property or assets. However, if you are joint tenants then your ex-spouse would automatically inherit the tenancy. In a joint ownership situation, your Will would determine where your share is distributed. It is possible to sever joint tenancies via the Land Registry Services. This is something that you can look into during your separation period when making changes to your Will.
What You Need To Do To Update Your Will
The first thing you need to do to update your Will is to reach out to reliable Will and estate lawyers who can handle this for you. Your Will is your final wish and if you want it to be an accurate one you need to take steps to control your legacy. It is unlikely you want your ex-spouse to inherit your estate or serve as executor so you need to ensure that it happens as you wish.
Speak To The Experts
The end of a relationship is both a profoundly emotional and stressful period of your life. It's difficult to cope with the breakdown of a relationship while trying to rebuild your life and the last thing you should have to deal with is a complex legal process on top of it. You can ease your state of mind by reaching out to reliable Will and estate lawyers who can help you properly navigate this time of your life. Reach out to AJB Stevens today for expert legal advice along with the compassion you deserve. We’re always available to talk and more than happy to help you get through this tough time in your life.