Have you recently separated? Do you need to update your Will?

Introduction

If you have separated from your spouse or partner, you should review your Will, and make a new Will if necessary. This is because your former spouse or partner may still receive your assets in accordance with your existing Will, which may not be what you want.

In this article we use the following terms to describe a partner:

• Spouse: this is a person to whom you are legally married.
• Domestic Partner: This is commonly known as a 'de facto partner’. Generally speaking, in Victoria, this means a partner to whom you are not married, and:
  • you have lived together for at least two years; or
  • you live together (regardless of the length of time) and have a child or children together.

It is possible that your partner could meet the legal definition of a domestic partner, even if you live in separate residences. This is a complex area of law, and specific legal advice should be sought.

The effects of separation and divorce on your Will

Separation

If you have:

• Separated from your domestic partner, or
• Separated from your spouse, but are not yet divorced,

then your former spouse or domestic partner may still inherit your assets under your existing Will. This is because your Will is not automatically revoked upon separation. Nor will a family law property settlement automatically revoke your Will. If you no longer wish for your former spouse or domestic partner to inherit your assets, then it is recommended that you take active steps to revoke your Will, by making a new Will.

Divorce

A divorce may not revoke your Will. Generally speaking, the Will continues to be valid, and only those clauses of your Will which gift assets to your former spouse and/or appoint your former spouse as the executor are automatically revoked (with some exceptions).  

The Will is then interpreted as if your former spouse had died before you. Depending on the wording of your Will, this could mean that the gifts to your former spouse in your Will could instead pass according to the laws of intestacy (discussed further below), which may not be in accordance with your wishes.  

What happens if I do not have a Will?

If you do not have a valid Will at the time of your death, you are considered to have died “intestate”. In these circumstances, the laws of intestacy will determine who is entitled to your estate.

In Victoria, if you die without a Will and leave a spouse or domestic partner, your estate will be distributed as follows:

• If you do not have children, or only have children with your current spouse or domestic partner:
  • Your spouse or domestic partner will receive your entire estate.

or

• If you have a child or children from a previous relationship:
  • Your surviving spouse or domestic partner will receive your personal belongings, and the ‘statutory legacy’ from your estate. At the date of this article, the statutory legacy is $539,100.00. The amount is indexed annually.
  • The remainder of your estate (if it exceeds the statutory legacy) will be distributed as follows:
    • A further 50% to your surviving spouse or domestic partner; and
    • The remaining 50% equally between your children.  

If you are married, and at the date of your death you are separated but not yet divorced, then your spouse will still inherit your assets as outlined above (subject to any alternate agreement reached between family members, or by order of the Court).    

You may read more about the laws of intestacy in our separate article My loved one died without a Will. What should I do?

Protecting your superannuation after separation

Superannuation is a separate class of asset which is not automatically covered by your Will. If you have separated from your spouse or domestic partner, you should take active steps to ensure your superannuation will be paid to your desired beneficiaries on your death. We have published a separate article on the topic which you may view here.

Protecting your property after separation

If you co-own real estate with your former partner, then you may need to take further steps to protect your share of the property. We have published a separate article on this topic which you may view here.

Conclusion

If you have recently separated from your spouse or domestic partner, it is strongly recommended that you seek advice as to whether you should make a new Will. A failure to do so could mean that your former spouse or domestic partner could inherit your assets, which may not be what you intended.

How Sharrock Pitman Legal can assist?

We have an Accredited Specialist in Wills & Estates Law, and our lawyers can provide advice on options available to safeguard your assets after separation. Please do not hesitate to contact us on 1300 205 506 or email sp@sharrockpitman.com.au.

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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