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The Effect of Marriage, Divorce and Separation on Your Will

Whether you’re venturing into a new relationship, entering into marriage or considering separation or divorce, it is important to understand the effect these relationship changes can have on your Will. Robert Wood and Associates is one of the trusted law firms in the east of Melbourne, with over 40 years’ experience providing sensible and practical advice in relation to Wills and Probate. If you are unsure how your Will might be affected by the beginning or end of a relationship, read on to find out more.

Marriage

Many Australians are unaware that marriage will revoke a Will made prior, unless it was made “in contemplation of marriage”. If you do not update your Will to reflect your marriage, a large part or perhaps even all, of your estate may be awarded to your spouse in the event of your death. For many people, this may not be a problem as they would expect their estate to be left to their spouse anyway, however if there are children from previous relationships involved or if there are other loved ones or charities you wish to provide for, you should update your Will accordingly.

Separation

For married couples, separation alone does not make a Will invalid. In Australia married couples must be separated for a minimum period of twelve months before making an application for a divorce, during this period you should update your Will to reflect your current circumstances. If you fail to update your Will upon separation and you pass away, your estranged spouse is likely to inherit everything you left them in your Will and if they have been named as executor, they will still be entitled to take up that role. It is recommended that you update your Will soon after your separate, a subsequent divorce will not impact your updated Will and you shouldn’t necessarily need to make another one once the divorce has been finalised.

Divorce

Divorce affects your Will differently in each state and territory. In Victoria, if you have made a previous Will that appoints your spouse as an Executor or gifts them part of your wealth, a divorce will revoke only those gifts or appointments made to your former spouse. The rest of your Will remains intact: s 14 of the Wills Act 1997 (Vic). However, if you have clearly intended that those gifts or appointments were not to be revoked, then they won’t be: s 14(2) of the Wills Act 1997 (Vic).

De Facto Relationship

Entering into a de facto relationship does not have the same impact on a Will as marriage, however, de facto partners develop rights to each other’s property over time and these rights may conflict with the wishes set out in your Will. If you are in a de facto relationship and you have previously made a Will or you are thinking about making one, you could consider making it ‘in contemplation of marriage’. If you do get married in the future, you do not have to worry about your Will becoming invalid.

Reviewing and updating your Will is just as important as creating one. Regardless of your relationship status, it’s important that your Will adequately reflects any changes to your relationships, this ensures that your Will is consistent with your wishes at any time. The process of making or updating a Will does not need to be complex or costly, the team at Robert Wood and Associates is here to help. The solicitors Melbourne families trust for expert advice on Wills and Probate, and all other matters related to estate law, make an appointment with our Ringwood lawyers today by calling (03) 9762 3877 or enquire online now.