• ASAP Lawyers

Separated by not divorced? What happens to your will?

Zac and Emily were happily married for 10 years before deciding to separate.

To avoid the finality of divorce and for practical and emotional reasons, they decided to not legally divorce.

Two years later, Emily and Zac had both moved on with respective partners but still were considered to be ‘married’ under law.

After five years of separation, Zac passed away unexpectedly leaving a Will that was made 10 years prior and had never been changed. In the Will, Zac left everything to Emily, leaving her as the sole beneficiary and executor of his entire estate.

Section 14 of the Wills Act 1997 “revokes any disposition to the divorced spouse of the testator, made in a will in existence at the time of the divorce”. However, as Zac and Emily never legally finalised their divorce, Zac’s new partner could not contest the Will and Emily was still legally entitled to the estate in question.

If you are separated from your partner but are not yet divorced, under the law you are still considered married and therefore your Will assumes the same.

If you no longer wish to have your ex-partner on your Will then the most important thing to do is to change your Will and, if applicable, revoke any powers previously granted to your ex-partner. This may include revoking your Enduring Power of Attorney and Appointment of Medical Treatment. This is critical, especially if you and your ex have done reciprocal Wills and reciprocal Enduring Powers of Attorney.

If you do not change your Will and you pass away before doing so, your ex-partner will be entitled to any benefits given under your Will. As such, if your ex-partner is named as a beneficiary to your estate and/or executor they would retain these benefits and powers.

If you have recently separated and wish to change your Will, you need to ensure that the intention for the new Will to stand after divorce is expressly indicated, otherwise, the Will may be considered to be voided.

brown oak background with paper heart broken in two

You should seek professional advice to ensure that your wishes are met. ASAP Lawyers can assist you with your estate planning matters.

Our lawyers are able to:

  • Review and update your current Will;

  • Advise you on any queries or concerns you have about your Will;

  • Draft you a new Will; and

  • Advise you on any binding death nomination (as may relate to funds held in superannuation accounts).

Contact us on 03 9450 9400 to speak with a member of our team.

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