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Published: 17 May 2019
Author: Madlaina Meister

The effect of marriage and divorce on your Will

Our own mortality is something many of us don't like to think about, and many people forget to review their Wills when important life events happen. Some of these life events have significant legal consequences when it comes to your Will. If you have not reviewed your Will and/or made a new one to account for the change in your circumstances, this can lead to unintended outcomes when you die.

In this blog post we will look at the impact marriage, and divorce in particular, have on a Will you have made before these events occurred.

How does marriage impact a Will?

You may be in a long-term relationship and sometime in the past during this relationship have made a Will. You now decide to get married, or have recently gotten married, but are still happy with the provisions you have made in your previous Will. Do you really need to make a new Will?

The answer is yes. Marriage will revoke a Will made before you got married. (S13(1) Wills Act 1997).

The one exception is if your Will clearly states that you made it in contemplation of marriage to the person you are married to when you pass away, or if it is clear from the circumstances at the time you made your Will that you made it in contemplation of marriage.

Any provisions you have made for your now husband or wife in your Will 'survive' marriage. These include appointing your husband or wife executor, as well as provisions leaving any part of your Estate to him or her. However, all other provisions of your Will become invalid the moment you marry.

This means that if your Will leaves a part of your Estate to anyone other than your husband or wife, for example, children from a previous relationship or bequests to charities, that part of your Will is invalid. The part of the Estate not left to your husband or wife will be dealt with as if you had no Will.

The way your Estate is distributed under the intestacy provisions may be vastly different from what you want.

Preparing a Will in same-sex relationships

If you are in a long-term same-sex relationship and have in the past made a Will, it is highly likely that Will was not made in contemplation of marriage, as marriage in Australia may not have been an option for you at the time.

Now that marriage is an option, it is important that you review your Will, even if you have not married your partner. If you and your partner have plans to get married, or even if you think marriage may be on the cards for you in future, we recommend that you make a new Will 'in contemplation of marriage' to ensure your wishes are legally binding even if you get married down the track.

De Facto Relationships and Will preparation

If you are in a de facto relationship of any kind and you have previously made a Will or are thinking about making a Will, but have no immediate plans to get married, you should still think carefully about making a Will 'in contemplation of marriage'. If you do then get married at some future date, you do not have to worry about your Will becoming invalid.

The impact of divorce on a Will

Getting divorced does not have the same effect on your Will as getting married. A Will you made while you were married, or even before you got married provided it was made in contemplation of marriage, will remain valid.

However, for the purposes of your Will and distribution of your Estate, your ex-husband or ex-wife will be treated as if they had died before you.

This means in particular:

  • if you have appointed your ex-husband or ex-wife as Executor of your Will, your alternative executor(s) will need to step in; and
  • any part of your Estate you have left to your ex-husband or ex-wife will go to the alternative beneficiaries listed in your Will.

Even though your Will 'survives' a divorce, it is a significant life event. The provisions you have made some years ago may no longer reflect your wishes, and you should therefore carefully review your Will and preferably make a new one.

How Separation impacts a Will

If you separate from your husband or wife but are not legally divorced, your Will and all its provisions remain valid. This includes any provisions you have made for your estranged wife or husband.

This means if you pass away while separated, but before you get divorced, your estranged husband or wife is likely to get whatever you left them in your Will and you may not want that to happen.

We strongly recommend that you make a new Will as soon as you separate. Bear in mind that a subsequent divorce will not make this Will invalid and you will not necessarily need to make another Will once the divorce has been finalised.

How can other significant life events impact a Will?

There are other significant life events, which can affect your Will or your wishes about who should receive what after your death. These include, but are not limited to:

  • the birth of a child or children
  • the death of a beneficiary or executor named in your current Will
  • a significant falling out with an executor or beneficiary named in your current Will; and
  • the sale of an asset you have made specific provisions for in your Will (for example a house you have left to your son in your Will).

We recommend that you review your Will any time a significant life event occurs. Our friendly Wills and Estates legal team will be happy to provide you with additional advice and assist you with reviewing your Will or making a new one.

Categories: Will, Estates, Divorce