Separation can be emotionally draining, but it’s also a crucial time to consider your legal and financial affairs. One important question: what happens to your will when your relationship status changes? This blog explores the impact of separation on your existing will, what to consider if you re-partner, and the importance of keeping your wishes documented.
What happens to my will when I separate?
When you separate, you go through a few legal processes, depending on your relationship status.
If you got married, you need to do two things. One is to apply for a divorce, and the other is to legally split your assets (and your parenting arrangements). If you were in a de facto relationship, you only complete the second process.
If you got married, applying for a divorce affects your will by removing clauses or appointments mentioning your previous spouse. There are exceptions, though; in most states, it does not revoke your previous will entirely. Check with a will and estates lawyer in your state or territory to understand the regulations.
Legally separating your assets does not affect your existing will. If you separate from your husband or wife and do not apply for a divorce, your previous will still stands. Even if you’re separated for many years, your assets may automatically go to your married spouse. They may also act as executor of your estate.
If you were de facto and you included your partner in a previous will, it still stands after separation. Even if they were not named in your will, don’t assume a previous de facto partner you have separated from has no claim to your estate. The term ‘de facto’ is open to legal interpretation and may factors may be considered.
It is possible to be married to one person and be in a de facto relationship with another and both to have a claim on your estate.
Review and update your will if your relationship status changes.
What happens to my will if I re-partner or re-marry?
If you re-marry, your previous will becomes invalid and your current spouse becomes the beneficiary of your estate. You need to update your will after marriage if there are specific people you want to leave assets to who are not your new spouse.
Once again, a new de facto partner may not be your beneficiary, or they may have a claim on your estate, even if it’s not what you want. If you want your de facto partner to be a beneficiary, it needs to be reflected in a will.
If you have children from your previous relationship, there are inheritance laws you should be aware of. For example, if you purchase a new home with a new partner under a ‘joint tenancy’, which is how couples usually purchase property, sole ownership passes to the other person in the case of your death, even if your will states that you want to leave your share to your children. This is called ‘right of survivorship’.
You may wish to protect your children’s interests in the case of your death, and there are mechanisms you can set up. For example, there may be structures where assets are in a trust in their name, or property purchased with a new spouse may be in a ‘tenants in common’ structure.
Speak to your partner and family about your wishes, and seek legal advice from a family lawyer or property lawyer about the best structure for your situation.
What if I do not have a will?
Dying without a will, or with an out-of-date will that does not reflect your wishes can result in pain for your family and an expensive fight if it is disputed. Take the pressure off your family by planning your estate and having an up-to-date will.
If you don’t have a will, separation is a good time to remedy this and create one.
Key takeaways
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- Laws governing wills and estates differ across states and territories in Australia.
- Marriage affects your standing will.
- Divorce affects your standing will, but the effect depends on the jurisdiction.
- Legally separating assets does not affect a standing will.
- If you are in a de facto relationship, don’t assume anything about your partner or ex-partner’s claim to your estate.
- Consider structures to protect the interests of your children if you re-partner.
- Review your will if you marry, separate, divorce or re-partner to ensure your wishes are correctly recorded.
- Seek legal advice from a will and estates lawyer when your relationship status changes.
Conclusion
Navigating the legal landscape of wills and estates amidst relationship changes can be daunting. Don’t put this in the too-hard basket! Stay informed and proactive to ensure that your wishes are protected and your loved ones are provided for as you intend. Remember to review and update your will regularly, especially after significant life events such as marriage, separation, divorce, or re-partnering.
Seeking guidance from a qualified legal professional specializing in family law and estate planning is invaluable in ensuring your affairs are in order and your legacy is preserved according to your wishes. With careful planning and informed decision-making, you can achieve peace of mind knowing that your estate is handled properly.
The Separation Guide aims to make separation and divorce simpler and less stressful. To learn more about how one of our Network Members could support your separation, take our free three-minute Q&A.
Disclaimer: This is for general information and awareness raising and does not constitute legal advice. Always seek professional legal support for family law or will and estate matters.
