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What Is The Effect Of Marriage, Separation And Divorce On An Existing Will?

What is the effect of marriage, separation and divorce on an existing Will?

How does marriage impact my Will?

The answer to this question depends on the date of the marriage, as a result of a change in the law on 1 March 2008.

Generally, when you get married any Will in place at the time of your marriage is revoked. If you pass away before making a new Will, then you are ‘intestate’ (which means you do not have a valid Will) and legislation will determine who is entitled to your estate.

There are limited circumstances where marriage will not revoke your Will.  If the Will was made in contemplation of marriage, then the Will remains in place and is not revoked by marriage.

A further circumstance where your Will may not be completely revoked is if your marriage took place on or after 1 March 2008. In that case, any provision in your Will in favour of the person you married and any appointment of them as an executor or trustee will remain in place, but the Will is otherwise revoked. If you pass away without updating your Will, then depending on the terms of your Will in place at the time you married, you may be partially intestate, which means legislation will determine who is entitled to that part of your estate which was not left to your spouse in the Will. Under the current intestacy laws, your spouse would likely be entitled to most and possibly all of that part of your estate, and this may not accord with your wishes.

As you can see, the law can be quite complicated, and so it is best to review and update your Will when you marry to ensure that the Will reflects your new circumstances and your wishes.

If I am married and I separate from my spouse, how is my Will impacted?

Separation from your husband or wife does not have any impact on the terms of your Will.  If you go on to divorce, then the divorce can affect the terms of your Will. However, prior to divorce, your existing Will and all of its terms remain in place.  For this reason, when you separate, you need to review and most likely update your Will.

If I separate from my defacto partner, how is my Will impacted?

Separation from your defacto partner does not have any impact on the terms of your Will.  Any provision in the Will in favour of your former defacto partner remains in place, so you need to review and update your Will.

 How does divorce impact my Will?

The answer to this question depends on the date of your divorce, as there have been a number of changes to the law over the years. If your divorce took place prior to 1 November 1989, then the Will you had in place at the time of your divorce is not affected at all. Your ex-spouse would be entitled to anything given to him or her in your Will, unless your Will was revoked or updated. It was only from November 1989 that divorce had an effect on the terms of a Will. There were some further changes to the law which took effect from 1 March 2008, which can effect precisely how divorce impacts the terms of the Will.

If your divorce was finalised anytime from 1 November 1989 onwards, and you had a Will in place at the time of your divorce, any gift in that Will in favour of your ex-spouse is revoked.  Your Will is read as if your spouse has predeceased you, which means any provisions for substitute beneficiaries in your Will may apply.  If your spouse was appointed as an executor or trustee in your Will, then that appointment is generally also revoked. However, there are some differences to how that appointment is treated depending on the date of the divorce. For example, if the divorce was on or after 1 March 2008, and if your ex-spouse was appointed in your Will as a trustee for beneficiaries that include your ex-spouses own children, then they may act as trustee despite the divorce.

As you can see, the law can become quite complicated, and so it is very important to ensure your Will is updated and reflects your current wishes.

Information contained in this article is of a general nature and is applicable to the current law in New South Wales.  It is not intended to address the circumstances of any particular individual or entity. It is important to note that the law in each state and territory can differ.

Advice should be sought from our experienced Estate Planning Team (on 02 4929 3995 or info@catherinehenrylawyers.com.au) if there is doubt as to the applicability of this information to individual circumstances. We would be happy to discuss your individual circumstances with you.

 

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