OVERVIEW
✤ Introduction
✤ Legal Separation and Your Will
✤ Divorce and Your Will
✤ Get the Help From Us
01
✤In Australia, marriage means that your will
becomes invalid. Many Australians are
unaware that entering into wedded bliss
means that the will they had in effect before
no longer matters and that they need to create
a new will.
✤Marriage is not the only major life change that
can make your will null and void.
✤In some cases, divorce also invalidates your
will. However, in other situations, your will
remains in effect but gifts or bequests to your
ex-spouse are no longer made, unless the
courts believe that you intended your former
partner to still inherit.
✤The rules for how divorces affect wills different
in each state and territory throughout
Australia, so you need to understand exactly
what is going to happen to your will if you
decide to end your marriage or if you have
gotten divorced.
01
✤Only divorce affects your will, not a legal
separation. If you pass away while your
divorce is pending or while you are separated,
your soon-to-be-ex spouse could still serve as
executor of your estate if this is what your will
specifies.
✤If you left property or assets to your spouse,
he or she will also inherit all of this money and
assets even if you are legally separated and
would no longer choose to leave them the
property you have worked to acquire.
✤Because a marriage separation does not have
an impact on your will, making changes to this
legal document while a divorce is pending is
essential.
✤In fact, this may be one of the times in your
life when it is most important to talk to a
lawyer and create a new will to specify your
wishes.
01
✤Divorce is the final and permanent severing of
your marital union, and it will have an impact on
whether your will is valid or not. However, the
impact of divorce on your will depends upon
where you are in Australia.
✤Since some states and territories declare a will
invalid as a result of a divorce and others do not.
This means your will very well could remain in
effect after divorce, depending upon where you
live.
✤When a will remains in effect, this does not mean
that any gifts you gave your ex spouse are
automatically going to be considered valid. In fact,
a divorce will almost always revoke provisions
that are in favor of a former spouse.
✤After divorce, your ex will no longer serve as an
executor even if he or she is named as one, and
your ex will no longer inherit property no matter
what your will says.
01
This is true except in certain situations:
• Provisions of your will that name your former
spouse as a trustee of property left for your
children or your spouse’s children will typically
remain in effect. Your spouse will still get to be the
trustee unless you change your will and specify
otherwise.
• Any grants of power that were given to your former
spouse that are exercisable only in favor of the
kids will generally also remain in effect even after
a divorce.
• If the courts believe that your intention was to
leave a gift to your former spouse, then the gift will
still be considered valid and your spouse will get to
inherit (your ex, as a potential beneficiary is going
to be able to make an argument to the court to
suggest that you still meant for him or her to inherit
even though you were no longer married).
• If you re-publish the will after your divorce has
gone through and you do not change the
appointment of an executor or alter the terms of
the will to disinherit your spouse, then all of the
provisions of the will giving your spouse power or
property will remain in effect.
01
✤ Your will is supposed to give you a voice after you are gone.
✤ However, if you do not change and update this important legal document when important life changes like divorce
occur, you’ll lose you right to control your legacy.
✤ Many people don’t want their ex-spouse to be an executor of their estate or to inherit their property, but they don’t
think to make the changes to their will to prevent this from happening. Don’t be one of those individuals.
Owen Hodge Lawyers are here and ready to help you modify your will if you are legally separated or if you
have divorced. Give us a call today to schedule a consultation and learn how we can provide you with
assistance with updating your will to make sure those that you love are able to preserve and protect your
legacy. We have extensive experience with estate planning and we can provide you with the guidance and
advice that you need to make informed choices about the legacy that you leave behind.
1800 770 780
www.owenhodge.com.au