When you are going through a separation, the last thing you may have on your mind is planning how your estate, possessions and assets will be distributed upon your passing.
However, there are a number of considerations to have in mind during this time as overlooking what you may consider to be the minor details can have serious repercussions for you or your family’s wealth that may be against your wishes.
The effect of marriage on your will
When you become legally married, any previous wills that you have made are automatically revoked. What this means is that all other wills that exist are in effect, cancelled.
What is intestacy?
If, upon your death, you do not have a will, you will pass away what is known as “intestate”.
What this means is that you do not have a valid will at the time of your death, and your estate will be given to your relatives in accordance with the law. In 2010, significant changes were made to the law in New South Wales, which entitle your spouse to the whole of the estate if there is also a child from the relationship. If you have a child from a previous relationship, the spouse is still entitled to receive your personal property, a statutory legacy (gift) of $350,000 adjusted by the Consumer Price Index, and half of the remainder of your estate. Your children from previous relationships will then be distributed to equal shares of the other half.
This means that if you marry and do not update your will, you run the risk of your estate being distributed against your wishes in the future. A will is a very important document which expresses your wishes upon your death, at that moment in time, which is important for you to understand that a will is not a one-time thing. It is a document that constantly should be updated to reflect your change in circumstances.
The importance of updating your will post-separation
In light of the above and in the event that you do not update your will during the course of or after your marriage, this can have significant repercussions on the distribution of your estate.
If you fail to update your will, your former spouse will be entitled to any gifts distributed from your will in relation to the wishes that you expressed during your marriage, or subject to the intestacy laws as mentioned above.
Understandably, you have made a big, life-changing decision to separate from your partner. It is important to acknowledge that these revolutionary changes bring along with it after-effects that need to be addressed.
It would be very concerning to have your former husband or wife as your nominated executor, effectively allowing them to be in control of the administration of your whole estate, making decisions “on your behalf” despite being separated from you.
If you were to pass away during that period, your spouse will be entitled to receive your assets, regardless of your separation and regardless of whether you are in the process of, or have finalised your property settlement.
If you have recently separated from your former partner and you are currently waiting to receive your divorce order, it is incredibly important that you update your will as soon as possible to reflect your new wishes.
Divorce and starting a new chapter
Divorce is different to separation. There is usually a lengthy period of time between being separated and being divorced. Quite often, becoming divorced is one small step of your journey that happens many years after separating.
Once you are divorced, in NSW, your Will becomes revoked automatically. However, it divorces to how marriage revokes your will discussed earlier.
In New South Wales, divorce from your former spouse will only revoke the parts of your will that have appointed your former spouse as the executor, trustee or beneficiary of your will. This is good for you if you have forgotten to update your will during the separation, but in any event, we would encourage you to update your will in circumstances where you have either: been recently married, separated and waiting for a divorce order, or recently divorced.
In addition to your Will, it is also important to consider creating a Power of Attorney and Appointment of Enduring Guardian and updating your superannuation Binding Death Nomination to ensure that your wishes are well reflected.
How we can help you express your wishes
At Kalpaxis Legal, we offer you support for each step of your separation pathway and view your separation from a holistic lens.
We are pleased to offer fixed-fee packages in estate planning to ensure that your wishes for what you leave behind are rightly expressed.
Want to secure a future for your children and family that is consistent with your wishes? Get in touch today to book a consultation by clicking here or giving us a call on (02) 8631 8593.
Written by Stefano Cammarano
Collaborative Family Lawyer
