Domestic relationships and Wills

It is important to understand the effect of your relationship on your Will. Whether you are married or in a de facto relationship, divorced or separated, your Will should reflect your current circumstances.

If your relationship status changes and you do not update your Will (or have a Will in place) then there is a chance your assets will not pass as you intend. This could be costly and cause unnecessary stress to your loved ones in order to attempt to give effect to your intentions.

Marriage revokes a Will

You may not know that marriage actually revokes a Will. If you do not update your Will once you have married, your assets may pass to your new spouse. Whilst this may be your intention, if you have children from a previous relationship or other people you may wish to provide for, this could be unfavourable.

Whilst marriage revokes a Will, the clauses in the Will that provide for the spouse, whether it be an executor appointment or a gift, are not revoked. Again, this means whilst your spouse could still inherit, other beneficiaries, such as your children, may miss out.

There is also an exception in that your Will is not revoked by your marriage if the Will is made in contemplation of your marriage. We would recommend you seek advice if you have a Will in place and intend to marry.

Separation

When spouses or de facto partners separate, it is common for them to finalise a property settlement to divide the assets between them. However, separation does not have any legal effect on your Will, whether or not you have finalised a property settlement.

If your Will provides for your spouse or partner and you do not update your Will after separation, then upon your death your spouse or partner will still inherit from your estate in the manner provided in your Will. Similarly, if you do not have a Will in place and you have separated, then your assets will be distributed as per the Rules of Intestacy whereby your assets will highly likely pass to your spouse or partner.

Whilst there may be avenues available to your loved ones to challenge this, it would be costly and stressful and could be avoided by updating your Will once you separate.

Effect of divorce on a Will

Whilst parties may separate and finalise a property settlement to divide their assets, divorce is a further and final step people may choose to take to finalise a relationship. Whilst some may find they do not need to go down the path of divorce, there may be reasons to do so, for example, ensuring that your former spouse does not benefit from your estate once you have died.

The law in Victoria provides that if you divorce, the clauses in your Will that refer to your former spouse, such as their appointment as executor or distribution of assets to them, will be invalid. Whilst this may appear be in line with your intentions, it is not necessarily that simple and could cause expense and delay in dealing with your estate.

How we can help

An out of date Will (or not having a Will) can be costly, time consuming and unnecessarily stressful for your loved ones. We always recommend you review your estate planning arrangements every three to five years or as your personal or financial circumstances change.

Whilst actually updating your Will may not be necessary each time, by having it reviewed, you can be certain that your assets will pass as you intend. For more information, please do not hesitate to contact us.