The Effects of Marriage, Separation and Divorce on Your Will

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marriage separation and divorceBe forewarned! This is not one of those areas of the law that will seem intuitively obvious, even after a thoughtful explanation. Marriage, separation and divorce will affect your Will and other estate planning documents in ways that you may not expect.

Furthermore, the effects of marriage, separation and divorce vary considerably between different states. You should review your estate plan at regular intervals throughout your life but especially in the event of marriage or divorce. And don’t rely on your understanding of general principles to navigate the twists and turns; you can seek legal aid to ensure you follow the correct procedure.

What effect does marriage have on your Will?

If you have made a Will prior to getting married, your subsequent marriage will invalidate the Will, unless the Will expressly states it is made “in contemplation of marriage.”

Let us suppose for a moment that you make a Will without the required language, marry and then die unexpectedly without making a new Will. In the eyes of the law, you will have died intestate.

Intestacy rules in NSW usually mean the entirety of the estate would go to your surviving spouse, which may be exactly what you would have provided for in a new Will. But consider the difficulties that may arise if this is a second or subsequent marriage. What if you have children of a previous marriage, for whom you had intended to provide?

In NSW, an ex-spouse may, in some circumstances, make a claim against an estate, even when a property settlement agreement has been finalized. Contesting a will, as we all know, tends to devour the assets otherwise intended to be put to better use.

What about a de facto relationship? This is an area where estate law has not caught up with some other legal changes that treat de facto relationships like legal marriages. Your de facto partner could end up with no rights under the law unless those are explicitly provided for in a Will.

What effect will separation and divorce have on your Will?

The short answer is: both more and less than you think.  In some jurisdictions, a divorce will automatically render your Will invalid. In others, divorce will simply revoke your former spouse as your executor or any gift left them.

Unlike divorce, a marriage separation has no effect on your Will. It is one of those ill-defined states, similar to a de facto relationship in some ways. A period of separation that occurs before you apply for a divorce may be a good time to update your Will to reflect your new reality.

What effect will marriage or divorce have on other estate planning documents?

As part of proper estate planning, many people also execute a Power of Attorney, appoint an enduring guardian or establish a trust intended to hold the property to benefit parenting arrangements for children. They name those to benefit from life insurance policies and specifically nominate beneficiaries of their super funds. These are important tools to ensure that their wishes for the future are implemented and that those nearest and dearest friends and family are well provided for.

But, as above, consider the issues that might arise if the marriage is a second or subsequent one. Your untimely death could create a welter of conflicting and unintended consequences unless you have updated those documents at the same time that you re-did your Will. For example, although divorce generally revokes any benefit to a former spouse, courts have held that a specific gift may survive.  

Divorce also generally revokes your former spouse’s appointment as your executor. It may not, however, automatically revoke an appointment of your former spouse as trustee of property left in trust for your children with that former spouse.

Why update regardless of marital status?

The larger point in all of this is that you should review your estate plan at regular intervals – at a minimum, every 12 months. Perhaps you and your spouse live in a state of enduring bliss, with no foreseen family disputes. Perhaps you have never married and never intend to. What if your child suffers a permanent disability? The charity that you intended to support? What if… what if…

You should set a regular date with your legal and financial advisors to ensure that your Will and other estate planning documents are current. This ensures that your family, children and property will always be protected in unfortunate circumstances.

Whether you are contemplating marriage, separation and divorce, or just want to stay on top of your plan, the experienced attorneys at Owen Hodge Lawyers are here to help you update your Will and other estate planning documents to ensure they reflect your wishes.

If you require legal advice related to marriage, divorce, spousal maintenance or for any other family related issues, please contact us at 1800 770 780 to schedule a consultation with the most experienced family lawyers Sydney has.


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