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How Does Marriage, Separation And Divorce Affect Your Will?

By March 26, 2018 No Comments

Your will can be affected when you say, “I do” and “I don’t”.

So, next time you change your relationship status on Facebook (or someone you know does), simply follow our 3-step checklist:

  1. Contact us to find out how the relationship change may affect you
  2. Update or create a will – if required
  3. Start planning that engagement, wedding or divorce party

Ok we know it’s not the most romantic checklist (#sorrynotsorry) BUT it will be effective!

Each state and territory in Australia have different laws about how a change to your relationship status may affect your will. We are applying Queensland law in this post.

When You Say “I do”

Did you know that as a general rule your will is automatically revoked (cancelled) once you are married? The same rule applies to civil partnerships.

It is possible in Queensland to make a will in contemplation of marriage, and such a will would be valid after a subsequent marriage.

However, if you have married since you made your will and you did not make that will in contemplation of marriage, that will is probably no longer valid.

In Queensland, parts of your will that appoint your spouse as your executor or any gift to your spouse may still be valid; however, the rest of your will is cancelled. This can obviously cause complexity, conflict and in turn cost.

If your will is cancelled altogether, then your assets would be dealt with under the laws of intestacy. This may mean that your spouse receives your entire assets. In some cases, the cancellation might suit you particularly if you have made a will early in life, went on to marry, but forgot to update your will to include your spouse.

For many people however this outcome may not be ideal because they want other family members or friends to also benefit. The common scenario would be children of the current marriage or children from a previous relationship.

You may also want to put in place asset protection measures for your spouse or children such as a testamentary trust which is created in a will.

When You Say “I don’t”

Pre-Divorce

Separation does not automatically revoke your will.

Before you can apply for divorce, you must have been separated for 12 months. The time between separation and divorce is known as the “pre-divorce” period. This period is possibly the most important time to ensure your will recognises the change to your relationship status.

Why? Because if you don’t update your will after separation and you pass away, your former spouse may inherit your assets. You may not want this to occur. Also, if your will appoints your former spouse as your executor, they will be able to take on that role whether you want them to or not.

So, before you start organising your divorce party, it is crucial to update your will to acknowledge your new-found independence.

Post-Divorce

A Divorce Order will automatically cancel any part of your will that includes your former spouse, subject to some exceptions.

One exception is if you make a will during your marriage, and you appoint your former spouse to manage a testamentary trust for the benefit of your children until they turn of age. This appointment is unlikely to be cancelled by the divorce.

Your former spouse can also argue before the Court that you did not intend for your will to be cancelled by divorce, and a successful former spouse could inherit your assets, even though you were divorced.

To avoid the risk of such a claim, upon divorce you need to have an updated will.

De Facto Relationships

On 5 June 2017, new Queensland laws were passed to say that when your de facto relationship ends, parts of your will that include your de facto partner are cancelled.

This type of cancellation is similar to what applies to married couples once they are divorced but it starts from an earlier point for de facto couples (i.e. at separation).

The concern however is  that a former de facto partner could argue before the Court that either the de facto relationship had not ended or (similar to divorce) that you did not intend for your will to be cancelled by separation.

What Is The Take Away Message?

Your will should be reviewed regularly and particularly when major changes occur in your life.

Marriage, separation and divorce are major life changes that may affect your will.

Making a will doesn’t have to be tedious, time-consuming and expensive. At Martens Legal we use a simple but effective process for our estate planning matters. Please refer to our previous post – Be the Person With A Plan… An Estate Plan for more information on our estate planning process.

 

Disclaimer

The information contained on this site is for general guidance only.  No person should act or refrain from acting on the basis of such information.  Appropriate professional advice should be sought based upon your particular circumstances.

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