Don’t let outdated or non-existent estate planning cause unintended consequences
Going through a separation or divorce is one of life’s most challenging transitions. Amid the emotional and practical upheaval, reviewing your estate planning is likely the last thing on your mind, but it should be one of the first. It is one of the most important steps you can take to protect yourself and your loved ones.
Failing to update your Will, or failing to make one at all, after a relationship breakdown can have serious and unintended consequences.
Here’s what you need to know.
- Separation does not revoke your Will
In Australia, simply separating from your spouse or de facto partner does not invalidate or alter your existing Will. If you have named your former partner as a beneficiary or executor, those provisions will remain valid during your separation unless and until you make a new Will.
This means that if you pass away without updating your Will, your ex could still inherit from your estate or be responsible for administering it, regardless of how long you have been separated.
- Divorce does revoke certain parts, but not all of it
Unlike separation, a divorce can revoke specific parts of your Will under Australian law, with variations by state and territory. Upon divorce:
- Gifts made to your former spouse are typically revoked;
- Their appointment as executor, trustee, or guardian is usually cancelled;
- The rest of your Will remains valid, unless it depends on your marriage continuing.
However, if you intended to leave something to your former spouse or still wish for them to act as executor, your Will must be updated to reflect that after divorce.
- What if you never made a Will at all? Intestacy laws apply and these may favour your ex
If you die without a valid Will, known as dying intestate, your estate is distributed according to a legal formula set out in the intestacy laws of your state or territory. In many cases, this may result in your former partner still receiving a share of your estate, especially if the separation was informal or not legally finalised.
This is particularly risky if you have children, a blended family, or own property jointly with your ex. Without a current Will, your assets may not be distributed the way you would want and may lead to legal disputes.
- Common misconceptions that catch people out
We often hear things like:
- “We’ve separated so my Will doesn’t count anymore.”
- “I don’t need a new Will until the divorce is final.”
- “We agreed who would get what—it’s sorted.”
Unfortunately, verbal agreements or assumptions don’t change the law. Unless your Will is formally updated, the court will apply your existing legal documents, not your intentions.
- Superannuation and other non-estate assets
It’s important to remember that not all assets are covered by your Will. Superannuation and life insurance typically require binding nominations to be in place to ensure they go to the right people.
If your ex is still listed as your beneficiary and you haven’t updated these nominations, they may still receive your super or insurance payout.
- Protect your wishes, your loved ones, and your legacy
Estate planning is about more than just dividing up assets. It’s about making sure the right people are protected, and your assets, children, and legacy are looked after in the way you intend, especially during major life changes like separation and divorce.
If you have recently separated, divorced, or are planning to, now is the time to review your estate planning and nominations.
Need help? We’re here to guide you
Whether you’re separated, divorced, or just starting over our estate planning team can help you understand your rights and responsibilities, review your current documents, make the necessary updates to reflect your new circumstances and importantly reduce the risk of future disputes or unintended outcomes.
Contact us today to arrange a confidential consultation. It’s a simple but powerful step toward securing your future and protecting the people who matter most.
