Do you know how getting married, separated or divorced affects your will?
Whether you are getting married for the first time or you’ve recently separated from a previous partner, it is important that you know how these life events may impact your will.
Getting Married
In New South Wales, the act of becoming legally married to someone automatically revokes any previous will that you have made. If you pass away without making a new will after the date of your marriage, you will pass away “intestate”, which means that you do not have a valid will at the time of your death and your estate will be given to your relatives in accordance with the law.
Under the current intestacy laws of New South Wales, your spouse is the first person entitled to your estate and in most circumstances, your spouse will receive all or the vast majority of your estate.
Whilst this operation of the law may not be an issue for many first-time marriages, it may cause problems for people who have children from a previous relationship or other people who they are responsible to provide for.
There is an exception to this rule. Where your will is expressed to be made in contemplation of a marriage to someone, then your will is not automatically revoked upon your marriage to that person.
Recently Separated
Separation from your husband or wife does not have any impact on your will. If you have recently separated from your partner and you are currently in the one year waiting period to be able to get divorced, it is incredibly important that you update your will as soon as possible to reflect your new wishes!
If you pass away without updating your will after you’ve separated, your former husband or wife will inherit any property that was gifted to them in your previous will. If your previous will nominated your former husband or wife as your executor, they will be in control of the administration of your estate.
Formally (or finally…) Divorced
In New South Wales, the act of becoming formally divorced will also automatically revoke your will, but not in the same way that marriage does.
Divorce from your former husband or wife will only revoke those parts of your will that have appointed your former husband or wife as the executor or trustee of your will, or gifted them any of your assets – which is good news for you if you forget to update your will during the separation period.
However, becoming divorced does not revoke any appointment of your former spouse as the trustee of any property that has been left on trust for the beneficiaries in your will, such as your minor children. This means that, even though your former spouse will not receive any benefit from your estate, they may end up as the person responsible for managing the inheritance for your minor children until they become adults.
A similar exception exists for this rule, and where your will is expressed to be made in contemplation of your divorce then it will not be automatically revoked when your divorce becomes formal.
Life-changing events like getting married, separated or divorced can have just as much impact on your will and eventual distribution of your estate as they can have on your life. If you would like to know how your marriage, separation or divorce has affected your previous will, or if you would like to prepare a new will because you’ve experienced one of these events, you should contact our Wills & Estates Law team for further advice specific to your circumstances.
For further information contact:
Kaisha Gambell
Lawyer
kaisha@couttslegal.com.au
02 4647 7447
