Marriage, Separation and Divorce have different effects on your estate. It is therefore important to understand, as the circumstances of your relationship change, the need to make or review your Will immediately.
If you die without making a Will, your estate will be distributed according to the rules of intestacy. Put simply, this means you will not have a say as to who receives your assets when you die.
Marriage
Marriage invalidates a Will unless the Will is made in contemplation of that marriage. If your Will was not made in contemplation of the marriage, you should make a new Will as soon as possible after you are married.
Separation
The fact that you have separated from your spouse or defacto partner does not automatically invalidate your Will.
For married couples, the period of separation before divorce, is the most crucial time when a Will should be made or reviewed. This is because you cannot apply for a divorce until you have been separated for 12 months and there will invariably be a window where your existing Will or the rules of intestacy may not reflect your wishes. This may mean your former spouse will receive a substantial portion of your assets even if you did not wish for this to occur.
For defacto couples, your relationship ends immediately on separation. However, it is important to remember that as there is no divorce, your Will continues unaffected. It is therefore essential that defacto couples make a new Will immediately upon separation.
Divorce
A divorce order invalidates the provisions in your Will which relate to your former spouse. However, when clauses are invalidated, it can cause problems with the interpretation of your Will and the provisions made for your other beneficiaries. Additionally, if your former spouse was named as an executor of your Will, your estate will not have an executor which has been appointed by you.
Superannuation
As to your superannuation, this is often the largest asset when you die.
It is important to be aware that your superannuation death benefits do not by law form part of your estate, and will not automatically be distributed according to your Will. Usually, the trustee of your super fund decides how and to whom the benefit will be paid, unless you have a binding death benefit nomination.
This is why it is important to ensure that after separation or divorce, you contact your superannuation fund and make or change your binding death benefit nomination.
If you have not yet made a Will or wish to review your existing Will, please contact Farrell Family Lawyers for advice and guidance.
