Separation from a partner or spouse can be incredibly stressful. There are so many things to think about from property settlement to child support and everything in between. One area that should never be neglected in this process is reviewing and updating your will. In the unfortunate event of your death (or incapacitation), if you haven’t updated your will following a separation, your estate and assets could go to your former partner or spouse.

Here, we unpack what happens if you don’t update your will after a separation or divorce, what you can do to protect yourself, family provision claims, and other estate planning matters you may need to consider.

What is a will?

Wills appoint a beneficiary, who in the event of your death or incapacitation, will inherit your belongings. 

Without a will in NSW, the distribution of your assets – which can include tangible valuables that belong to you such as land, houses, cars, and bank accounts – fall under a strict formula called ‘intestacy rules.’ These rules specify to whom and how assets of a deceased estate are to be divided. So, what does this mean?

Under the laws of intestacy, the surviving former ‘spouse’ is the person who inherits the estate. This applies even if they were legally separated at the time of the death and there was no intention from the surviving former spouse to make any provision for their former partner. This also applies to de-facto relationships. To avoid this happening, there are steps you can take to protect yourself. Updating your will is one.

What happens if I don’t update my will?

These rules can also apply if you don’t update your will following a separation or divorce. If there is a Power of Attorney in place for a former partner, this should also be revoked as part of this process.  

As an example, a separated couple can be apart for several years and have agreed on a property settlement, but if a former partner unexpectedly dies during this process before a divorce is finalised, the former partner will inherit the entire estate of the deceased former spouse. This is by virtue of the fact that they are still “married” (usually subject to the rights of any children or other eligible persons). This can also apply to Superannuation benefits.

You should also bear in mind that getting a divorce needs to be done as quickly as possible after separation. By law, you need to be separated for at least 12 months before you can officially apply for a divorce. Until a divorce is finalised, your former partner still has a right to claim against your estate.

Obviously, this is not an ideal situation for anyone to be in, so it’s important to update your will as soon as possible after separating. Our Sydney family lawyers can help you make, change or update your will and provide advice on any other family law matters that you may need to think about as part of the process.   

Wills, separation and family provision claims

Another thing to consider is family provision claims. These are typically made by a family member where they feel they have been inadequately provided for or excluded in a will. It also applies even where there is no will. 

Different states and territories in Australia have their own criteria as to who can make a family provision claim. In NSW, this can include your former partner, even if you were married and then divorced, or a former de-facto couple.

Under NSW law, stepchildren are not eligible to challenge a will on the basis of a family provision claim, unless they meet certain criteria:

  • Dependence: If the stepchild was ever dependant on the deceased person (this can typically be the case if the families blended when the stepchildren were young), they can make a family provision claim.
  • Living arrangements: If a stepchild ever lived with the deceased at any time in their life, they could make a family provision claim. Howver, they would need to provide sufficient evidence of this.

It can be a tricky and complicated process. Every situation is unique and sometimes it can be hard to know where to start. That’s why it’s so important to engage a qualified family law lawyer early on.

What other estate planning matters do I need to consider?

A separation or divorce should not be the only time you consider updating your will.

Any time there is a change in your family circumstances, you should be reviewing and updating your will. These could include:

  • Marriage or the start of a de facto relationship (especially if there are children from a previous relationship);
  • The birth of children or grandchildren;
  • If an executor or beneficiary already named in your will dies; and
  • If your financial circumstances change.

Aside from wills, other financial matters to consider as part of your estate planning include:

  • Jointly-owned properties;
  • Superannuation funds and death benefit nominations;
  • Life and risk insurance policies;
  • The circumstances surrounding the decision as to whether your will should include Testamentary Trusts;
  • Any powers of attorney and personal arrangements; and
  • Having knowledge of the reasons for asset protection and benefits of owning property in family discretionary trusts.

Getting help with your will and estate planning

If you’ve recently separated and need to make changes to your will, but don’t know where to start, our Sydney family lawyers can help.

Seeking legal advice early is the best way to protect yourself, your family and your estate. It can also help to alleviate the anxiety and stress that comes with a separation. Our experienced family lawyers can guide you through the process and answer any questions you may have about estate planning, wills, separation or any other family law matters. We can work with you to put a plan in place that gives you peace of mind, knowing that your family is protected.

Call our Ivy Law Group family lawyers today on (02) 9262 4003 for a free initial consultation, or book an appointment online.

The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.
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