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It is never an easy situation to deal with a formal separation between a married or de facto couple. The emotional burden on both sides and the extended family can lead to things being overlooked.

One of the most important steps that any person should take after separating is to change their Will and, if applicable, revoke their Power of Attorney that may be in place to their spouse. This is particularly relevant where couples have already done reciprocal Wills and Powers of Attorney. A couple can be separated for several years and have agreed on a property settlement but if a spouse unexpectedly dies during this process before they are divorced, the estranged spouse will then inherit the entire estate of the deceased spouse by virtue of the fact that they are still “married” (subject to the rights of any children). This can also apply to Superannuation benefits.

This can apply even where there are no Wills in place. Under the laws of intestacy, the surviving ‘spouse’ is the person who inherits the estate, even though they were legally separated at the time of the death and there was obviously no intention from the surviving spouse to make any provision for their ex partner. This also applies to defacto couples. Children also have a claim on the estate and share with the spouse. Most people would be mortified if their now ex-spouse or partner inherited even part of their estate!

You should also bear in mind that getting a divorce needs to be done as quickly as possible after separation. Until the divorce is finalised and the decree nisi received, your spouse still has a right to claim against your estate. The best example of this is where a spouse dies before the divorce is finalised without a Will and the entire estate passes to their now ex husband or wife (this can occur even though the divorce has been filed but the decree nisi has not yet been received from the courts).

There are different outcomes depending on which state you are in as to the effect of a divorce upon Powers of Attorney or being able to claim against the estate of someone who dies. In Queensland a divorce renders a Power of Attorney in favour of the spouse invalid. In New South Wales a divorce does not render a Power of Attorney invalid but does render an Enduring Guardian invalid. It is particularly important in New South Wales even after you are divorced to ensure that any Power of Attorney you have given to your now ex spouse is formally revoked.

The moral of the story is to always review your estate planning (i.e. Wills and Powers of Attorney) after any significant change in your family circumstances (e.g. death, divorce, births, marriages etc.).

You are welcome to contact our office with any enquiries concerning estate planning advice. Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers.

We have a dedicated Wills and Estates team that practices exclusively in this complicated area. Please click here to access our team brochure with details of our professional staff.

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Donna Tolley

Donna Tolley

  • Wills & Estates Department Manager
  • Wills and Estates
  • Direct line: 07 5506 8241
  • Mobile: 0423 772 555