The effects of divorce on your wills from OwenHodge

In Australia, marriage means that your will becomes invalid.  Many Australians are unaware that entering into wedded bliss means that the will they had in effect before no longer matters and that they need to create a new will.

Marriage is not the only major life change that can make your will null and void.  In some cases, divorce also invalidates 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 your former partner to still inherit.

The rules for how divorces affect wills different in each state and territory throughout Australia, so you need to understand exactly what is going to happen to your will if you decide to end your marriage or if you have gotten divorced.

Legal Separation and Your 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 executor of your estate if this is what your will specifies.  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 and would no longer choose to leave them the property you have worked to acquire.

Because a marriage separation does not have an impact on your will, making changes to this legal document while a divorce is pending is essential. In fact, this may be one of the times in your life when it is most important to talk to a lawyer and create a new will to specify your wishes.

Divorce and Your Will

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 impact of divorce on your will depends upon where you are in Australia.  Since some states and territories declare a will invalid as a result of a divorce and others do not. This means your will very well could remain in effect after divorce, depending upon where you live.

When a will remains in effect, this does not mean that any gifts you gave your ex spouse are automatically going to be considered valid. In fact, a divorce will almost always revoke provisions that are in favor 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 certain situations:

  • 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 favor 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.

Your will is supposed to give you a voice after you are gone. However, if you do not change and update this important legal document when important life changes like divorce occur, you’ll lose you right to control your legacy.  Many people don’t want their ex-spouse to be an executor of their estate or to inherit their property, but they don’t think to make the changes to their will to prevent this from happening.  Don’t be one of those individuals.

Owen Hodge Lawyers are here and ready to help you modify your will if you are legally separated or if you have divorced.  Give us a call today to schedule a consultation and learn how we can provide you with assistance with updating your will to make sure those that you love are able to preserve and protect your legacy. We have extensive experience with estate planning and we can provide you with the guidance and advice that you need to make informed choices about the legacy that you leave behind. Give us a call at 1800 770 780 or contact us viaohl@owenhodge.com.au to schedule a consultation to discuss how to take the necessary steps to change your will after divorce.