1 May 2015

The Effects of Divorce On Your WillPresented By Owen Hodge Lawyers

OVERVIEW

✤ Introduction

✤ Legal Separation and Your Will

✤ Divorce and Your Will

✤ Get the Help From Us

INTRODUCTION

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.

LEGAL SEPARATION AND YOUR WILL

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.

DIVORCE AND YOUR WILL

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.

GET THE HELP FROM US

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