Separating? Make sure you update your Will

7th March 2023

Updating your Will is not generally a priority for people separating from the spouse. But it should be, as RMB Lawyers Partner CLAIRE OSBORNE explains.

A relationship breakdown is an incredibly stressful and difficult time. There are many things to think about, from parenting arrangements to property settlement, child support, division of household contents and everything in between.

It is therefore no surprise that thinking about reviewing and updating your Will is not on top of the “to do" list. But here’s why you should make it a priority.

A Will ensures that your intended beneficiaries inherit your property and belongings in the event of your death. A common practice is that spouses make a Will that gives everything to the surviving spouse. A Will that provides for your spouse continues to have effect until such time as you divorce or you revoke your Will, whichever comes first.

Many people continue to be legally married, even after being separated for a number of years. In Australia in order to apply for a divorce there must be at least 12 months of separation. Therefore, if you separate but have not divorced or changed your Will, your Will is still valid, and your estate could still go to your estranged spouse if that is what is set out in your Will.

In NSW, if you die without a Will, your estate (land, houses, cars, bank accounts etc) will be divided in accordance with the rules of intestacy. Dying intestate means that the wishes of the deceased person are not considered.

Under the rules of intestacy, a surviving former spouse inherits the estate, even if the deceased person and their spouse had separated (but not divorced) and even if the deceased has children with their new spouse.

To avoid this situation, you need to get a Will after you separate and or update your existing Will. You also need to consider reviewing your Will if you later divorce to ensure your wishes and intentions are considered if you die. You also need to consider reviewing your nominated beneficiaries for your superannuation entitlements, as superannuation does not generally form part of your estate and is not subject to the terms of your Will.

Any change in your family circumstances such as a marriage, start of a de facto relationship, birth of a child, death of an executor or beneficiary named in your Will should prompt you to consider updating your Will.

If you're currently going through a separation and have any questions about the process or need to update your Will, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.