Marriage, separation, and divorce all have different effects on your Will. New studies show that many Australians are unaware that their Will becomes invalid upon marriage. This may not cause many problems for a first-time marriage, however, if there are other people you wish to provide for from a previous marriage, you will need to create a new Will to include them in your estate.
Marriage
According to s 13(1) of the Wills Act 1997 (Vic), your Will becomes invalid on the day you get married. You will not have a valid Will if you fail to update your Will to include your new relationship. If this occurs, the laws of intestacy will automatically direct a large amount of your estate to be paid to your new spouse, because at the time of marriage, you are agreeing to divide your assets permanently with that person.
The exception to this is if you make your Will ‘in contemplation of marriage’ that states that you have considered your new spouse. As a result, your Will would not be revoked.
Separation
Upon separation, your Will is not invalidated. Thus, if you pass away after separation but before a divorce is finalised, your ex-partner may still be entitled to a substantial part of your shared assets and any gifts you have stated in your Will.
Divorce
A formal divorce will invalidate clauses in your Will that relate to your ex-spouse, namely clauses that appoint them as Executor of your estate, as well as clauses that leave them a beneficiary of your estate unless you have specified for those gifts not to be revoked. Under s 14(2) of the Wills Act 1997 (Vic), the rest of the Will remains intact.
De Facto relationship
Entering into a de facto relationship does not revoke a prior Will. If you haven’t included your de facto partner in your Will, they may still have a claim on your estate, as an eligible person under Part IV s 90(a) Family Provision of the Administration and Probate Act 1958 (Vic).
What you should do
You should actively review your Will at least every decade, and make sure it is up to date. This should be done especially if circumstances change as a result of marriage, divorce, or separation.
In a period of separation from your spouse, you should consider reviewing and updating your Will. If you are separating from a de facto partner, it is essential to update your Will immediately upon separation.
Furthermore, you should consider including superannuation in your Will. Superannuation is often your largest asset after you die, and superannuation death benefits do not form part of your estate and will not automatically be distributed according to your Will. Thus, it is important to ensure that after a divorce or separation, you contact your superannuation fund to make changes to your death benefit nomination. We prefer that where possible, you make a binding, non-lapsing death benefit nomination.
Nicola Maltman – Law Clerk – Matthies Lawyers
Thus should you have any queries in regard to Wills and Estate matters, please contact Matthies Lawyers for an obligation free consultation or call +61 3 8692 2517 today.
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.