Your Will - The Effect of Marriage, Divorce and Separation
On this day many couples are celebrating their union.
On this day many couples are celebrating or commiserating their “uncoupling” as Gwyneth Paltrow so famously described it.
As estate planning practitioners, we advocate that part of the coupling or uncoupling process undoubtedly warrants a review of your estate planning documents.
How does marriage, separation and divorce affect my Will?
Marriage
In New South Wales, marriage revokes (invalidates) your Will unless it has specifically been drafted in contemplation of marriage.
If you fail to make a new Will after marriage, you die “intestate” and the rules of intestacy will apply to your estate. This may result in a substantial part or even the whole of your estate passing to your spouse, which may not be the intended outcome, for example, if you were in a blended family and had children from a previous relationship, or you wanted to make provision for another family member who was vulnerable and dependent on you.
If your Will leaves gifts to your new spouse or if you have appointed your new spouse as your Executor or Trustee, these clauses will remain in place, however all other clauses in your Will are revoked.
Divorce
In New South Wales, divorce invalidates any gifts to your former spouse in a Will made prior to divorce. It also revokes your former spouse as your Executor should you have appointed them in this role. There are however some exceptions to this. If the Court believes that you intended to leave a gift in your Will to your former spouse, then this is considered valid. If you have re-signed your earlier Will after your divorce and left intact the clauses relating to your former spouse, then this is also considered valid. If you have appointed your former spouse as the trustee of property left in your Will for the benefit of your children (with your former spouse), then this will survive your divorce.
Whilst divorce does not completely revoke a Will, it is strongly recommended to make a new Will so that your intentions relating to your former spouse are clear.
Further, divorce generally triggers some form of property settlement resulting in a change in ownership of assets and liabilities between you and your spouse, which again always warrants a Will review.
Separation
Separating from your spouse does not have the same effect on your Will as Divorce. It is likely that in the case of a separation, gifts and appointments under your Will in favour of your separated spouse would still take effect.
In most instances this is not what people want and it is therefore extremely important to review your estate planning arrangements on separation.
Take Control
Whether you are coupling or uncoupling this Valentines Day, please reach out to our team who will guide you through the process and help you to take control of your estate plan.
For further information
Please get in contact our Wills and Estate Planning team.
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