While getting married has a clear and definite effect on your current Will, being separated or divorced can be a very different story. When a person with a Will marries in New South Wales Australia, the Will is no longer valid. Therefore, immediately after getting married it is imperative that a couple sit down and redraft and sign new Wills. If they do not, and one spouse passes away, the deceased spouse will be identified as having died intestate (without a will) and the assets will be distributed in accordance with the intestacy laws.
However, the issues are far more complex if your marriage is breaking down or a divorce has been finalized. During such a stressful time, couples often forget to make the necessary changes to their Wills. The manner in which assets are handled under the law varies depending upon if a couple is separated or if their divorce has been finalized.
In the event of separation, a Will drafted by either party to the divorce remains valid and fully intact. Therefore, the following designations will remain in effect;
- The naming of your spouse as the executor or executrix of your estate
- Any and all bequeathments designated to your (soon to be former) spouse
- Trustee Designations
- Distribution of real and personal property
While many divorcing couples are in the storm of unpleasant feelings toward one another, the idea that your assets will still be distributed to a person that you no longer have a loving connection to could be extremely undesirable. In addition, if you should pass away without a Will during the period of separation, your assets will be distributed in accordance with the intestate laws, which will favour your estranged spouse. Hence, if you have other family members, children or friends that you would prefer to receive your estate, it is imperative that upon separation from your spouse, you change your will or create a Will leaving your assets to your loved ones.
If your divorce is finalized, the smartest action to take is to write a new Will. You will need to name a new executor and redistribute your assets to your children, other family members or friends. This may entail setting up a Trust for minor children and naming a Trustee to distribute the children’s share of the assets in accordance with your wishes.
However, if you do not write a new Will and you pass away, there are some parts of your Will that will automatically be revoked. These include;
- The naming of your ex-spouse as the executor or executrix; unless you made specific provisions to maintain them in this position.
- It will revoke your ex-spouse as the Trustee of any Trust that is set up for distribution to of monies or assets someone other than children you share. If the asset is going to someone other than children in common, a new Trustee will be named.
- All gifts to former spouses will be revoked. Any other gifts will be distributed in accordance with your stated wishes. Hence, if you made a separate gift to your children, it will not be revoked.
- It will also cancel the appointment of your ex-spouse as Guardian of persons other than biological or adopted children you share. (ex: an elderly relative)
Finally, as a single parent, you may want your Will to reflect bequeaths to your children sans your ex-spouses involvement in the management or distribution of the assets. In this instance, it is important to set up a Trust for your children. Within the Trust you will want to designate the types of expenditures the Trustee can allow for out of the value of the Trust.
These expenses might include educational, health and safety, and the recreational expenses and needs of the children. When the children are in need of monies to cover any of the delineated expenses, the custodial parent or guardian can make an application to the Trustee for the same. In the event that the Trust remains in place subsequent to the child reaching the age of legal adulthood, the child can then make an application to the Trustee for their living needs.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.