How Does Divorce Impact My Will?
A will is a written legal document setting out exactly what is to happen to your assets when you pass away. The person in charge of administering your estate, as it is known, is your executor. The people who receive your assets are called your beneficiaries.
Making a will is extremely important to ensure your assets go to the people you want to benefit upon your death. Of course, it is not compulsory to make a will. But if you don’t, you die intestate – and your estate and its assets will be distributed according to intestacy laws.
In Victoria, succession laws set out the order in which your relatives will receive your assets. The state will receive your assets if you have no eligible relatives.
What should I include in my will?
Your will should deal with all the property you own. You don’t have to list each item individually, however you need to include everything. There are some things that you are not able to bequeath in a will. These include your superannuation or insurance policies. For these types of policies, you usually nominate a beneficiary when you take out them out.
You may also wish to make particular arrangements for a number of other things, including instructions for your funeral and whether you want to be buried or cremated, the payment of your executor, the release of any debts that are owed to you, or a gift for charity, for example.
Marriage and your will
Any will that is drawn up before marriage is immediately made invalid by the marriage, unless that will states it is made “in contemplation of marriage”. Many Australians are unaware that their existing will is invalid once marriage takes place.
This is problematic in the situation where someone is marrying for the second time. If they don’t update their will, most of their estate will fall to their new spouse, and any children from a previous marriage may miss out.
Divorce and your will
If you separate and get divorced, it does affect your will, so it’s important to update this vital document. If you die before you get a chance to update it to reflect your changed wishes in the event of a divorce, the court can be left to try and decipher your intentions, and this can be tricky.
For example, your former spouse may inherit the property you left to them prior to the divorce, even if you don’t want them to.
It really does come down to the state or territory laws that apply to you.
In Victoria for example, your former partner is treated as having died immediately before you for the purposes of the distribution of your estate.
In Western Australia, if you get divorced or your marriage is annulled on or after February 9 2008, your will is null and void unless you expressly state in your will that you don’t want it to be cancelled upon divorce. Prior to this date, however, your will is not automatically cancelled upon divorce.
In Queensland, if you get divorced, the parts of your will that refer to your former spouse either as beneficiary or executor become null and void unless it is clear that you intended to include them. The rest of the will is still valid.
In NSW, if you divorce after you make your will, it rescinds or cancels any gift to a former spouse while the rest remains valid. It also cancels your former spouse’s appointment as an executor. But, this won’t apply if the court is happy that you did not intend to revoke the gift or appointment.
Your will can be impacted by both marriage and divorce. This is why it’s so important to consult a family lawyer and make a new will as circumstances change throughout your life. After all, you would not want a situation where your final wishes cannot be acted upon because of the lack of a will.