Attwood Marshall Lawyers Wills and Estates and Family Law Special Counsel Hayley Condon discusses how changes in your relationship can affect your Will – and the crucial steps you should take to protect your estate and avoid future litigation.
Updating a Will may seem like a peripheral concern amidst the emotional challenges of a relationship breakdown, however, failing to review and update your Will may lead to unintended consequences, such as your estate being managed or inherited by someone you no longer trust or wish to benefit, after your death.
Many people are unaware that separation does not have the same legal effect on your Will as divorce. Simply separating from your former spouse does not normally revoke any provisions in your Will. In contrast, divorce can automatically revoke certain parts of your Will. This however is dependant on your state or territory. Set out below is a summary of the legal position that separation and divorce have on Wills in Queensland and New South Wales.
In Queensland:
- the separation of a married couple or a civil partnership couple does not revoke any part of a Will, however the ending of a de facto relationship does revoke those parts of a Will that leave a gift to the former de facto partner or appoint the former de facto partner in the role of executor, trustee or guardian.
- the divorce of a married couple or the termination of civil partnership for a couple does revoke those parts of a Will that leave a gift to the former spouse or partner or appoint the former spouse or partner in the role of executor, trustee or guardian.
- except that the appointment of a former spouse, de facto partner or civil partner in a Will as trustee of property for beneficiaries that include their children is not automatically revoked.
In New South Wales:
- the separation of a married couple or a de facto couple does not revoke any part of a Will.
- the divorce of a married couple does revoke those parts of a Will that leave a gift to the former spouse or appoint the former spouse in the role of executor, trustee or guardian.
- except that the appointment of a former spouse in a Will as trustee of property for beneficiaries that include their children is not automatically revoked.
If, however, you remain on good terms with your former spouse despite a relationship breakdown, you may wish for them to continue to be a part of and benefit under your Will. In such cases, you can prevent these automatic revocations by expressly stating a contrary intention in your Will. An experienced estate planning lawyer can assist in reviewing or drafting your Will to ensure it accurately reflects your current wishes and circumstances.
Guardianship of minor children is another aspect of a Will that may become complex following a relationship breakdown. The right of a parent to nominate a guardian for their minor child in their Will, the circumstances in which that nomination takes effect, and the interaction between such nominations and both state or territory legislation and the Family Law Act, can vary across jurisdictions.
It is important to understand how these laws apply in your state or territory to ensure your wishes regarding guardianship are properly reflected and enforceable.
Given the various types of relationships recognised and the differing effects that separation and divorce (including the termination of certain relationships) can have under the laws of each state and territory, it is essential to seek advice regarding your circumstances and the impact it will have on your Will if a relationship breakdown occurs.
Other Estate Planning Documents
There is more to estate planning than just your Will. Other estate planning documents that should be considered and updated after a relationship breakdown include:
- your Enduring Power of Attorney or any other enduring document such as an Appointment of Enduring Guardian;
- your binding death benefit nomination for your superannuation; and
- your beneficiary nomination for any life insurance policy that is not part of your superannuation account.
Depending on the nature of your relationship and your state or territory, separation or divorce (including the termination of certain relationships) may affect your enduring documents in different ways.
Set out below is a summary of how separation and divorce impact enduring documents in Queensland and New South Wales.
In Queensland:
- the separation of a married couple, a civil partnership couple or a de facto couple does not revoke the appointment of the former partner in an Enduring Power of Attorney.
- the divorce of a married couple or the termination of a civil partnership for a couple does revoke the appointment of the former partner in an Enduring Power of Attorney.
In New South Wales:
- the separation of a de facto couple and the separation or divorce of a married couple does not revoke the appointment of the former partner in an Enduring Power of Attorney or Appointment of Enduring Guardian document.
What steps should separating couples take?
Immediately following a relationship breakdown, it is strongly recommended that you review your Will, your Enduring Power of Attorney, Appointment of Enduring Guardian and any other enduring documents that you have in place as mentioned in this article.
It’s common for people to appoint their spouse as both executor and beneficiary in their Will (including nominating them as the beneficiary of their superannuation and life insurance death benefits) and appoint their spouse as their attorney and enduring guardian (as applicable depending upon your state or territory) giving them the power to make important financial, health care and lifestyle decisions if they become mentally incapacitated.
If these documents are not promptly updated after a relationship breakdown, your former spouse or partner may continue to have authority over your affairs or inherit from your estate, contrary to your revised intentions.
For most individuals who have separated, this outcome is unlikely to be desirable.
While updating your estate plan may seem like an additional burden during an already busy and emotionally challenging period, it is a straightforward and urgent step. Addressing your estate planning needs can be managed alongside other practical priorities in the early stages of separation, such as arranging new living situations or establishing interim parenting arrangements.
For couples that are married, you must be separated for at least 12 months before you can apply for divorce, and many people delay taking this formal step. During this period, your existing Will and estate planning documents remain in force, which may expose your estate to unintended risks if something unforeseen occurs.
It is also essential to review and, if necessary, update your binding death benefit nominations for superannuation accounts and any nominated beneficiaries on life insurance policies. These nominations are often overlooked following a relationship breakdown and must be changed directly with your fund or insurer.
What if you separate, but don’t divorce?
Suppose you fail to update your Will after separating from your spouse, and you pass away unexpectedly, your estranged spouse will inherit any property you previously left to them in your Will if you are not divorced at the time of your death. Unfortunately, this is a not an uncommon scenario.
For some, the idea of removing an estranged spouse from their Will whom they still care about can be a difficult and emotional decision, particularly if there is hope for a reconciliation.
While these emotional factors are entirely understandable, it’s important to recognise the significant legal consequences of leaving your Will “as is”. If you die while still legally married and have not updated your Will, your estranged spouse could walk away with a substantial portion of your estate, regardless of your changed intentions or circumstances such as being in a relationship with a new partner.
Protecting your estate in new relationships and blended families
When you enter a new relationship and if you decide to remarry after divorce, your new spouse and potentially children from previous relationships may be entitled to bring a family provision claim against your estate after your death, regardless of the provisions in your Will, if they can demonstrate that they have not been adequately provided for by you.
It’s essential for will-drafters to be acutely aware of these potential issues and to implement strategies that minimise the risk of claims against the estate.
Blended families introduce additional layers of complexity. Depending on your state or territory of residence, stepchildren may be able to make a claim on your estate after your death.
For example, in Queensland, stepchildren are eligible to bring a claim, and the definition of stepchildren extends to the children of a de facto partner or a civil partner.
In New South Wales, while stepchildren are not automatically eligible to bring a claim, they may qualify if they can show they were members of the deceased’s household and were dependent on the deceased at some point.
A well-considered estate plan should consider your personal circumstances and family dynamics, how your estate is structured including whether you have significant funds held in superannuation or jointly owned property, and your wishes for distribution.
An experienced estate planning lawyer will consider all these factors and employ strategies to ensure your intentions are fulfilled and to reduce the likelihood of disputes arising after your death. This may include structuring property ownership appropriately, ensuring binding death benefit nominations for superannuation are up to date and valid, and drafting a Will that clearly articulates your wishes and mitigates the risk of costly litigation over your estate after you are gone.
Attwood Marshall Lawyers – helping you plan for the future and preserve your wishes
Attwood Marshall Lawyers boasts a specialised team that practices exclusively in estate litigation, estate planning, and estate administration.
Our lawyers take the time to connect with each client to ensure they understand what matters most to them and to help them achieve their estate planning goals.
For advice on estate planning, please get in touch with our Department Manager, Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au to arrange an appointment.
Our estate planning lawyers are available for appointments at all our conveniently located offices at Coolangatta, Southport, Robina, Kingscliff, Brisbane, Sydney and Melbourne.
