Marriage and separation impacts your Will. It is important to review your Will regularly and seek legal advice when you have a change of circumstances.
MARRIAGE AND WILLS
Many people are unaware that their Will becomes invalid if they marry.
If you fail to update your Will, a large part of your estate may be awarded to your spouse. This may not be a problem for many first-time marriages, but if you have children from a previous marriage or other people you wish to provide for, it is important to take control of your estate and reflect your wishes in your Will.
The only circumstance where a Will does not become invalid upon marriage is if you made a Will prior to marriage that expressly states it is made “in contemplation of marriage”. Apart from this one exception, you will need a new Will if you marry.
Blended families, ie families where one or both parties have children to previous relationships require expert advice when it comes to estate planning. Members of these families typically want to provide for their spouse but ensure their children do not miss out. The tricky thing with these matters is, should yu provide everything to your spouse, there is no guarantee they will provide for your children when they pass. On the flip side, even if you are confident they will provide for your children in the future your children may make a claim on your estate. It is really important to meet wit a lawyer to ensure everyone is protected and your assets are structured in a way to prevent claims.
DIVORCE AND WILLS
Divorce affects your Will, but it does so differently in each state and territory. In some jurisdictions, divorce will automatically render your Will invalid. In others, divorce will simply revoke your former spouse as your executor or any gift left them.
However, this does not occur if the courts believe you intended to leave your former spouse a gift or if you re-published the Will after the divorce without changing the executor appointment or gift.
Rather than leave these matters to the court to unravel, it’s better to make a new Will after your divorce to ensure your intentions concerning your former spouse are clear.
DE FACTO RELATIONSHIPS
Setting up house with a de facto partner does not have the same impact on a Will as marriage. As time passes in the relationship, you and your partner each develop rights to the other’s property. These rights may conflict with the wishes set out in your Will.
Upon separation, if you pass away before a property settlement between you and your de facto partner is reached, it will be your partner who ends up with your property. If you are not comfortable with this thought, it is best to get a new Will.
Unlike divorce, marriage separation does not have an effect on your Will. The period of separation that occurs prior to divorce is possibly one of the most important times to ensure your Will reflects your changed circumstances.
If you fail to update your Will upon separation and you pass away, your spouse may inherit any property you left to them. Similarly, if your Will names your spouse as your executor, they will be entitled to take up that role regardless of whether you wanted them to or not.