How does marriage or divorce affect my will?

Getting married and divorced has become an everyday occurrence across the world. Latest statistics show that more than 112,000 marriages were registered and over 49,000 divorces were granted in Australia over the year to end 2017. Whether you are getting married or divorced, it is imperative that you update your will to reflect any major changes in your life.

Marriage and the implications on your will

In NSW, Section 12 of the Succession Act 2006 states that getting married revokes (cancels) an existing will, unless it expressly states it was made in anticipation of marriage. An individual who was recently married, therefore, may be deemed to have died intestate (without a will) should they pass away soon after the wedding, leaving the courts to determine who is entitled to their estate.

Generally, intestacy rules mean the entirety of the estate would go to the surviving spouse. While some couples may be satisfied with this outcome, many individuals will have plans to distribute their assets among different beneficiaries.

Updating your will as close to the marriage as possible will ensure your estate planning accurately reflects your current wishes.

The effect of separation and divorce on your will

In NSW, you must be separated from your spouse for a year before a family court will finalise your divorce. Separation, however, has no impact on the terms of your will, which means any assets you have bequeathed to your former partner will continue to be distributed to them should you die.

Additionally, the breakdown and separation of a de-facto relationship will not change the testator’s will. Any provision in the will which are in favour of the testator’s former de-facto partner will remain in place.

Upon divorce, any provisions to the testator’s former spouse are revoked. Although there are some exceptions to the rule, any powers of appointment exercisable by a former spouse are also revoked. This includes them acting as executor, advisory trustee and guardian of the will. However, a former spouse can still be appointed as trustee of any property left in the testator’s will where the beneficiaries include the children of the spouse.

Although a divorce does revoke parts of the will, including assets to the former spouse and any appointment of power, it should be noted that this is not the case if you’ve made specific contrary intentions clear within your will.

Understanding the validity of a will following a change in circumstance can be confusing, which is why it is crucial to get specialist legal advice from a qualified professional.

Contact our Family & Wills Lawyers in Sydney & NSW

Szabo & Associates, Solicitors can offer expert advice on a wide range of legal matters, including contesting, making or updating a Will and preparing a Power of Attorney. Please call George Szabo on 02 9281 5088 or fill in our online contact form.