The Implications of a Divorce/Separation to a Will

It is necessary to review a will every 3 to 5 years especially when some personal or financial situations arise such as marriage, separation, divorce, having children and so on. Your relationship status has strong implications on existing wills you may have. Unless there are legitimate reasons, the Australian court is not likely to alter a valid will.

Effects of Divorce on a Will Created During Marriage

If you are separated but not yet legally divorced, any will created during marriage will make your former spouse inherit your estate at the time of your death. A separation does not have the power to invalidate any will created during the marriage; only a divorce can nullify a will and ensure that a former spouse cannot inherit the estate.

If a deceased never made a will but the court issued a Divorce Order before the time of death, the former spouse will not be entitled to inherit the estate. It’s best to create a will even before the court issues a Divorce Order to avoid complications.

When a former spouse challenges the will of a testator, the court analyses the situation and weighs factors including:

  • The responsibility of the deceased in relation to the reason behind the divorce.
  • Whether the deceased is the father/mother of the children of the one challenging a will
  • The length of time the deceased has been divorced with the person challenging the will
  • The length of their married life
  • The age of the testator and the one challenging the will at the time of the separation
  • The extent to which the deceased has provided any settlement for his or her spouse before death
  • The challenger’s marriage or legal status after the divorce

What Steps To Take With Your Will After Separation/Divorce

The only way to disinherit a former spouse is to create a new will after you separate. If the will was made before a divorce, a lawyer can help insert appropriate legal clauses to ensure that the will is valid even after a Divorce and that you no longer have to redo the will.

To ensure that your will in not invalidated after the issuance of a divorce, review it and any previous wills you may have made. Create a new will if necessary.

Life Insurance and Superannuation

Your life insurance and superannuation are not governed by the laws of intestacy. When you get separated or divorced, it is best to contact the companies that handle your life insurance and superannuation to be able to nominate a new beneficiary. If you fail to do so, your former spouse will remain your beneficiary even after a divorce.

It is important to know all the legal implications and effects of a divorce or separation to your estate planning. It is best to consult a lawyer to ensure that your hard earned properties are awarded to people that matter.

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