Divorce is one of the most significant changes to anyone’s life. While many are concerned with property divisions and custody battles, there is another aspect that tends to be overlooked. It’s the impact of divorce on your will in Australia.
Most people believe their will is still binding after divorce or separation, but legally, this is not the case. Your will can change automatically once your marriage ends, potentially leaving your wishes incomplete or ineffective.
This blog discusses what happens to your will during and after divorce. Why it matters for your future, and how the best family lawyer in Sydney can help you know the updating process of your will.
Does Divorce Revise a Will in Australia?
Divorce will not entirely revoke your will in Australia, but it will change how it takes effect. Under family law and wills legislation:
- Any appointment of your former spouse as executor (the individual who administers your wishes) is automatically revoked.
- Any benefit or gift made to your former spouse is automatically revoked.
- The remainder of the will is still good, but frequently in a manner you did not intend.
This means that if your will leaves most of your estate to your former partner, those provisions cease to be effective once you are divorced.
What Happens During Separation?
It’s essential to know that divorce and separation are distinct stages. Many couples will live apart for as much as two years before the divorce is finalised. During this time, you are still legally considered married.
This can cause problems if anything happens to you while you are separated:
- Your spouse could still inherit in accordance with your existing will.
- Your partner might also be entitled to your life insurance or superannuation, depending on the policies.
This is why it’s advisable to update your will as soon as you’ve separated. You don’t have to wait until the divorce is finalised to take control of your estate planning
Why Property Settlements and Wills Must Work Together
Property settlements, divorce and wills in Australia are closely connected. In separating property under family law, you can decide who gets to stay in the home, have savings or investments. But if your will does not reflect those changes, there can be confusion down the line.
For instance:
- You can transfer the property into your name, yet your previous spouse can still be the sole beneficiary.
- You can settle, but not remember to update superannuation nominations.
- If you remarry without updating your estate plan, your marriage may revoke your will in its entirety.
Therefore, if you have your will in accordance with your property settlement, you can then know what your wishes are and that they are legal and binding.
Important Things to Know About Divorce and Wills
Here are the key things to understand about divorce and wills in Australia:
- Separation does not alter your will.
- Divorce revokes any gift to your former spouse and to them as executor.
- The rest of your will remains in force unless you re-draft it.
- Life insurance and superannuation are additional and also require revision.
- Remarriage automatically revokes any current will, except one made in contemplation of marriage.
Why Update Your Will After Divorce
Updating your will after divorce is all about taking care of yourself and your loved ones. Without an updated will:
- Your assets can be distributed according to the laws of intestacy, which may differ from your wishes.
- Your children, new spouse, or relatives could be deprived of what you wished for them.
- Conflict can occur between your ex-spouse and other relatives.
A will enables you to:
- Name a new executor that you are confident in.
- Choose whoever should take care of your children if they are below 18 years old.
- Leave assets to children, relatives, or a new partner.
- Ensure that property settlements align with your plan.
What Happens If You Don’t Update Your Will After Divorce?
Most individuals believe that the moment they divorce or separate, their will will automatically be changed. In fact, not updating your will can bring about serious problems for those surviving you.
Here’s what can occur:
- Former spouse can still inherit – Relying on the marriage breakdown, certain clauses remain in effect and leave assets to a former partner.
- Disputes between family – One family member may interpret an earlier will in a different way than others. It can result in family disputes and expensive litigation.
- Delays in inheritance – Courts might have to intervene before an asset can be transferred to one of your children or other intended beneficiaries.
- Unintended guardianship issues – If you have children, not updating your will may mean that your wishes regarding guardianship are not properly set out.
Updating your will after a divorce is not just about avoiding confusion. It’s about protecting your family, your assets, and ensuring your intentions are respected.
How Eckert Legal Can Help
At Eckert Legal, we appreciate the interrelation between estate planning, including wills, and family law. We have the best family lawyers in Sydney who work closely with clients to develop their estate planning in accordance with their current circumstances.
We deal with the following regularly:
- Revising wills following separation or divorce.
- Connecting property settlements with estate planning.
- Providing advice on superannuation and beneficiary nominations.
- Preparing new wills to safeguard children and future partners.
With Eckert Legal, you can trust that your intentions will be honoured, regardless of what changes in your life you may experience.
Conclusion
Divorce alters more than your daily routine. It can also redefine your will in some unexpected ways.
Even though the law automatically disqualifies your ex-spouse from several positions, it doesn’t disqualify your entire estate plan.
For clarity, the safety of your possessions, and to guarantee that no one important to you will be overlooked, amending your will is something important that you can do after a divorce.
With a family law and wills professional at Eckert Legal, you can proceed confidently knowing your intent will be supported. Eckert Legal is here to provide you with sound advice on property settlements, family law, and wills. Contact us today.
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