Did you recently marry the love of your life? Or perhaps you have recently separated or finalised
your divorce? Well, you’re reading the right article!
Did you know that marriage, separation and divorce may have an impact on your Will? Or if you
do not have a Will yet, this may affect your estate in general. It is very important to get your
estate planning sorted, as failing to do so may have the unintended effect of your hard-earned
assets being distributed to your former partner or family member whom you do not want to
inherit from you.
Marriage and Your Will
So, what is the effect of marriage on your Will?
It is understandable that updating a Will or making a Will may be on the bottom of your ‘to do list’
after marriage. Afterall, the bliss of a new relationship and marriage is so much better than
discussing the confronting reality of passing away.
Not everyone is aware that marriage automatically revokes your previous Will, unless there is a
clear clause in your existing Will that says that you made your Will “in contemplation to
marriage”. Contemplation to marriage means that you do not want your Will to be invalidated
upon getting married.
If you fail to update your Will or do not have any Will after your marriage, then generally your
estate will go to your spouse. This might not be your intention, and the situation may become
complex when you have children from a previous relationship, or if you had intended to provide
gifts or some or all your estate to someone other than your spouse.
Having a new Will made after marriage can be the most effective way to take control of the
distribution of your assets. The contents of that document can explicitly consider factors such as
your children’s needs, your moral obligation to your spouse, and so on.
Separation, Divorce, and Wills
What is the effect of separation and divorce on your Will?
Did you know that even when you separate from your partner or spouse, any appointment and
gifts made under your Will are still operative? Yes, you read that right, your spouse, even after
separation, may still inherit from you and may still manage your estate. In many scenarios, if you
do not have a Will after separation (or have yet to finalise your family law dispute), your former
partner may still have a claim against your estate.
Divorce invalidates the appointments and gifts made to your divorced spouse in any existing
Will, unless you have clearly stated in your Will that this is not your intention. As a result, it would
be prudent at this stage to obtain a new Will which clearly states your intended appointments
and gifts post-divorce.
It is important to update your Will after this major relationship change. In fact, one of the most
crucial periods that you should consult a Wills and Estates lawyer is after separation, and/or
upon divorce.
Summary
In summary, marriage, separation, and divorce are important factors that the Courts will consider
if you were to pass away.
Depending on your circumstances, your former spouse could still make a claim against your
estate after separation.
It is important to remember to update your Will or make a Will (if you do not have one) to reflect
your wishes. Ensure that your loved ones are properly provided for.
At the very least, you should discuss your circumstances with an experienced Wills and Estate
lawyer, so that you know the consequences of these major changes in your relationship on your
Will and your Estate, empowering you to make an informed decision.
Next steps
If you or someone you know wants further information or needs advice with estate matters,
please contact our Intake team on (03) 8415 5600 or email us at
reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any course of
action.