Separation changes your life. But it doesn't automatically change your Will.
When couples separate, their immediate priorities are often dividing property, making parenting arrangements and planning for their financial future. One important step that is often overlooked is reviewing their Will and estate plan.
Many people assume that separating from their partner automatically removes them from their Will or prevents them from inheriting their estate.
Unfortunately, it's not that simple.
Depending on your circumstances, your former partner may still be entitled to inherit your assets, administer your estate or retain certain decision-making powers if your documents haven't been updated.
At Simple Separation, we believe that protecting your future is just as important as resolving your past.
What Happens to Your Will When You Separate?
In Australia, separation generally does not automatically revoke or change your Will.
This means that if your existing Will names your former partner as a beneficiary or executor, those provisions may remain legally effective even after you have separated.
In most Australian states and territories, divorce affects certain provisions of a Will relating to a former spouse, such as gifts and appointments as executor. However, the exact rules vary, and divorce does not necessarily invalidate the entire Will.
Importantly, divorce generally cannot be finalised until you have been separated for at least 12 months.
That creates a period between separation and divorce when your existing Will may continue to operate, even though your personal circumstances have changed significantly.
For couples who remain separated without formally divorcing, this situation can continue for years.
Five Reasons to Review Your Will After Separation
1. Your Former Partner May Still Inherit Your Estate
If you die before updating your Will, your former partner may still receive assets you originally intended to leave to them.
For example, your existing Will may leave your entire estate to your spouse, with your children only inheriting if your spouse dies before you.
If you are separated but not divorced, those arrangements may still apply.
Updating your Will helps ensure that your assets are distributed according to your current wishes, rather than decisions made during your relationship.
2. Your Former Partner May Still Be Responsible for Administering Your Estate
Your Will may appoint your former partner as executor.
An executor is responsible for administering your estate, including managing assets, paying liabilities and distributing inheritances.
After separation, you may prefer to appoint a trusted family member, friend or independent professional.
Reviewing your Will gives you the opportunity to reconsider who should carry out these important responsibilities.
3. Your Children’s Financial Future May Need Additional Protection
If you have children, reviewing your estate plan is particularly important.
You may wish to consider:
Who will manage any inheritance left to your children.
Whether a testamentary trust would be appropriate.
How assets will be managed until your children reach a suitable age.
Whether your existing arrangements adequately provide for their future needs.
Who you would prefer to care for your children if you die, noting that guardianship arrangements are subject to applicable family law and court considerations.
A properly prepared estate plan can help provide financial security for your children and reduce the potential for disputes between family members.
4. Your Superannuation and Other Beneficiary Nominations May Need Reviewing
Many Australians assume their superannuation automatically forms part of their estate and will be distributed according to their Will.
This is not always the case.
Superannuation death benefits are generally governed by the rules of your superannuation fund and applicable legislation. Depending on your fund and circumstances, benefits may be paid according to a valid binding death benefit nomination, trustee discretion or other applicable arrangements.
Your former partner may still be named as a beneficiary.
Some funds also allow particular types of nominations involving your legal personal representative, which can make your Will relevant to the ultimate distribution.
Reviewing your estate plan with a solicitor can help you understand whether your existing nominations remain appropriate and valid.
5. Your Former Partner May Still Hold Important Decision-Making Powers
Your Will generally takes effect when you die. But what happens if you become seriously ill or lose the capacity to make decisions for yourself?
Your former partner may still be appointed under an enduring power of attorney, medical treatment decision-making document or another legal arrangement.
Separation does not necessarily cancel these appointments.
This is particularly important for de facto couples, where the legal consequences of separation can differ from those of divorce.
An estate planning review can help ensure that the people authorised to make financial, personal or medical decisions for you are the people you currently trust.
What Happens if One of You Dies Before Your Financial Settlement Is Finalised?
This is another important consideration that many separating couples overlook.
If you or your former partner dies before your property settlement is finalised, the legal position can become more complicated.
For example:
If your former partner dies before settlement
Their estate will generally be administered according to their valid Will or, if there is no valid Will, the applicable intestacy laws.
Whether you have any entitlement to their estate or can pursue a family law property claim will depend on your circumstances, including the stage of any proceedings and the applicable law.
If you die before settlement
Your estate will generally be administered according to your Will or the intestacy laws.
However, any unresolved family law property interests may require separate legal consideration. Whether proceedings can continue or a claim can be pursued by your estate depends on the circumstances.
The longer a financial settlement remains unresolved, the longer these issues may remain relevant.
If you have health concerns, a significant age difference, children to provide for or a potentially lengthy settlement process, it is particularly important to seek advice from a qualified lawyer.
You don't need to wait until your financial settlement or divorce is finalised to review your estate planning.
What if You Don't Have a Will?
If you die without a valid Will, your estate is generally distributed according to the intestacy laws of your state or territory.
These laws determine who may inherit your assets and in what proportions.
Depending on your relationship status and circumstances, a separated spouse or former de facto partner may have rights that you had not anticipated.
Without a clear estate plan, administering your estate may also become more complicated, costly and stressful for your family.
Having a professionally prepared Will helps provide clarity about your intentions and may reduce the likelihood of unnecessary conflict.
Why Use an Estate Planning Solicitor?
While basic Will templates are available, estate planning can involve more than simply deciding who receives your assets.
An experienced estate planning solicitor can help you consider:
The correct legal drafting and signing requirements.
The appointment of executors and trustees.
Superannuation death benefit arrangements.
Powers of attorney and medical decision-making documents.
Testamentary trusts and provisions for children.
Potential claims against your estate.
Strategies to reduce the risk of disputes and litigation.
Professional advice is particularly valuable following separation, when your family structure, financial circumstances and priorities may have changed.
Although no Will can guarantee that a claim will never be made, appropriate legal advice and careful drafting can help reduce avoidable uncertainty.
Simple Separation's Will & Estate Plan Package
$1,299 + GST
At Simple Separation, we understand that separation is about more than reaching a financial agreement. It's also about creating a secure foundation for your next chapter.
That's why we offer access to experienced estate planning solicitors who can help you review your circumstances, understand your options and put appropriate arrangements in place.
Our Will & Estate Plan Package is designed to provide an affordable, straightforward way to protect your wishes and plan for the future.
Your estate planning solicitor will help ensure your documents are appropriately prepared and executed, while considering relevant legal requirements and your personal circumstances.
The specific documents and services included in the package will be confirmed before you proceed.
Take the Next Step Towards Peace of Mind
If you've recently separated, are working through a financial settlement or have already divorced, now is a good time to review your Will and estate plan.
Your circumstances have changed. Make sure your estate plan reflects the life you're building now.
Speak to Simple Separation about our Will & Estate Plan Package — $1,299 + GST.
General information only. Estate planning, family law and superannuation rules vary across Australian states and territories. Individual circumstances and the terms of existing documents can affect your legal position. Seek independent legal advice about your circumstances.
