The Importance of Updating Your Will and Estate Plan After Separation

We know that talking about how your assets are dealt with after your death can be an uncomfortable topic for many people.  However, it’s really important, and cannot be overlooked if your life changes, such as when you go through separation. Many people operate under the misconception that if they are separated from their partner, that is enough to sever the financial ties they have to each other under their Wills or any claims to an inheritance if they pass away. This is incorrect!

Separation does not sever your spouse or partners rights to receive your estate under the Succession Act 1981 (Qld).  So, what is the law in this area?

If you have a Will

It is very common for spouses to make Wills that provide for everything they own to pass to the other in the event of their death.  This is often people’s intention when they are in a relationship or married.  However, if you separate from your married spouse, you need to keep in mind that your Will as it applies to your spouse or partner continues to operate until such time as you are divorced and the Court issues a Divorce Order, or until you change or revoke your Will.  Many people continue to be legally married for some time, even years, after separation so if your Will remains unchanged before you die, then your estate may not be received by the people you intend. 

On the other hand, if you are in a de facto relationship, then any provision provided for your de facto spouse in your Will ends when the relationship ends.  Similarly, if your Ex is appointed as the executor of your Will, this too will end when the relationship ends.  However, there may be some discrepancies in this regard in relation to proving whether or not the relationship has ended and what evidence is available to show that the relationship has ended.

If you have don’t have a Will

If you do not have a Will and remain married or in a de facto relationship, then your spouse or partner is still entitled to receive a portion of your estate under the intestacy provisions of the Succession Act 1981.  The portion of your estate that they receive will depend on whether or not you have any children. Again, if you are married this entitlement continues until you have obtained a Divorce Order or have made a new Will which excludes your spouse from inheriting from your Estate.

What should you do?

Update your Will after separation to ensure that your Estate is divided the way you want – and to the people whom you want to receive it.

We also recommend that you get an Enduring Power of Attorney in place to ensure that you have the right people you want making decisions about your finances or health if needed.

If you need any assistance in updating your Will or Enduring Power of Attorney, get in touch with us and we can offer the names of trusted law firms to assist you.

Alternatively, if you are just beginning your family law matter and need some guidance as to where to begin, you can book a free 30-minute CLARITY CALL to get guidance around your immediate concerns and first steps.

***Disclaimer***

This article is for general information purposes only and does not constitute legal advice or any other professional advice.