The effect of Marriage & Divorce on your will

The effect of Marriage and Divorce on your Will It is important to understand the effect a relationship change has on your Will. Whether you are married or in a de-facto relationship, divorced or separated, your Will should reflect your current circumstances.

If your relationship status changes and you do not update your Will (or have a Will in place) then there is a chance that your assets will not pass in accordance with your wishes. This could be costly and cause unnecessary stress for your loved ones.

Many Australians are unaware that their Will becomes invalid when they marry. If you fail to update your Will after your marriage, the law states that the Rules of Intestacy will apply to your estate. In NSW, this means that the entirety of your estate could go to your surviving spouse. This may not be a problem for many first-time marriages, but if you have children from a previous relationship or other people you wish to provide for, your Will needs to be updated.

Generally, divorce treats a reference to your former spouse in your Will as if he or she died before you. This means that any clauses in your Will that refer to your former spouse, such as their appointment as your executor or gifts of assets to them, will be invalid. However, there are some exceptions to this, which differ throughout Australia.

Unlike divorce, marriage separation does not have an effect on your Will. The period of separation that occurs prior to divorce is therefore one of the most important times to ensure that your Will reflects your changed circumstances. If you fail to update your Will when you separate and you later pass away, your former spouse may inherit any property that you left to them in your outdated Will. Similarly, if you do not have a Will in place and you have separated, then your assets will be distributed as per the Rules of Intestacy which in NSW means that the entirety of your estate could go to your former spouse.

In NSW former spouses are eligible to go to Court and seek provision from your estate after you pass away, regardless of the terms of your Will, even if you have already finished a family law property settlement and your former spouse was not dependant on you when you died. Thankfully, there are strategies you can adopt to minimise the chance of a successful family provision application being brought against your estate including preparing a s100 statutory declaration and/or obtaining a court approved s95 release of rights. It is critical though that these options are carefully canvassed with an experienced lawyer before implementing as they may not be appropriate for your personal circumstances.

An outdated Will (or simply not having a Will) can have unintended consequences and will often be costly, time consuming and unnecessarily stressful for your loved ones. For peace of mind, certainty and control, contact Rayners Lawyers today.