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How does marriage or divorce affect my Will?

in Estate Planning by Rod Cunich on

Whether you’re making up or breaking up, it is important to understand the effect marriage, divorce or separation can have on your will.

Just like your relationship status on Facebook, your will should reflect any significant relationship changes. Such changes can include marriage, entering a de facto relationship, divorce or separation.

Marriage and wills

Many Australians are unaware that their will becomes invalid when they marry. In fact, new research by Slater and Gordon has revealed that many Australians are unaware that their will becomes invalid as a result of marriage.

If you fail to update your will to reflect this major relationship change, a large part of your estate may be awarded to your spouse. This may not be a problem for many first-time marriages, but if you have children from a previous marriage or other people you wish to provide for, it is worth taking control of your estate.

The only circumstance where a will does not become invalid upon marriage is if you made a will prior to marriage that expressly states it is made “in contemplation of marriage”.  Apart from this one exception, you will need a new will if you marry.

Divorce and wills

With the trend of hosting divorce parties, it is essential that before you start planning your soiree, you update your will to recognise your new found freedom.

Unlike divorce, marriage separation does not have an effect on your will. The period of separation that occurs prior to divorce is possibly one of the most important times to ensure your will reflects your changed circumstances.

If you fail to update your will upon separation and you pass away, your spouse may inherit any property you left to them.  Similarly, if your will names your spouse as your executor, they will be entitled to take up that role regardless if you wanted them to or not.

Divorce affects your will, but it does so differently in each state and territory. In some jurisdictions, divorce will automatically render your will invalid. In others, divorce will simply revoke your former spouse as your executor or any gift left them.

However, this does not occur if the courts believe you intended to leave your former spouse a gift or if you re-published the will after the divorce without changing the executor appointment or gift.

Rather than leave these matters to the court to unravel, it’s better to make a new will after your divorce to ensure your intentions concerning your former spouse are clear.

Does being in a de facto relationship affect my will?

Setting up house with a de facto partner does not have the same impact on a will as marriage. But you could say de facto relationships do have a degree of sexually transmitted property rights. As time passes in the relationship, you and your partner each develop rights to the other’s property. These rights may conflict with the wishes set out in your will.

Upon separation, if you pass away before a property settlement between you and your de facto partner is reached, it will be your partner who ends up with your property. If the thought of this frightens you, it is best to get a new will.

Where to go from here

The process of making a new will does not need to be complex, time consuming or costly – a will ensures the orderly management of your wealth when you aren’t around to exercise personal control.

Remember reviewing and updating your will is just as important as creating one. It is preferable to have your will reviewed every time there is a major event in your life (a birth, death, marriage, acquisition of property, disposal of property) otherwise every three years, though if that is not possible, then at least every five years.  A review only means you need to check it’s still current.  It’s rare that you need to change your will but it’s critical you don’t miss that need.

You can make or update your will using Slater and Gordon's innovative online will service.

Rod Cunich
Estate Planning, National Practice Group Leader
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