Separation and Divorce are significant life events that impact many aspects of your life, including your estate planning. Understanding how separation and divorce affect your Will is crucial to ensure that your estate reflects your current wishes and circumstances.
Impact of Separation on Your Will
In NSW, separation does not impact the appointments and gifts in your Will, and that is why it is incredibly important that if you become separated, you update your Will. This means that if your ex-spouse is listed as your executor in your Will, then your ex-spouse will still be able to take on this appointment and be the person responsible for administering your estate in accordance with your Will. If your ex-spouse is listed as a beneficiary in your Will and you are separated but not divorced, he or she may still inherit under your Will unless you update your Will.
Further, if you do not have a valid Will in place and you become separated but not divorced, your ex-spouse could be entitled to a portion of your estate or the whole of your estate depending on the size of your estate and whether anyone else is entitled under intestacy. Who is entitled to your estate under intestacy is determined by Chapter 4 of the Succession Act 2006 (NSW) and is based upon who survives who.
Immediate Impact of Divorce on Your Will
In NSW, divorce does not revoke your Will, but it revokes any gifts to your former spouse as well as any appointments of a former spouse as executor and/or trustee. This means that any gifts or bequests made to your ex-spouse are void.
If your Will appoints your former spouse as the executor or trustee, these appointments will also be revoked upon divorce. The role of executor will typically pass to a substitute executor named in your Will or, if no substitute executor, a beneficiary may apply to the Supreme Court of NSW to be appointed as administrator of the estate through Letters of Administration with the Will Annexed.
After your divorce is finalised there are several crucial steps you must take to ensure your Estate is distributed as per your wishes. We recommend reviewing and updating your estate planning documents to ensure that it accurately reflects your current wishes of who benefits from your estate and that your estate planning documents are valid post-divorce. This may also include re-evaluating how your estate is divided in place of your ex-spouse’s benefits.
Other Matters to Consider
If you are going through a separation or divorce, it is important to review and update your nominated beneficiaries for your superannuation and life insurance policies as well as any other existing estate planning documents such as Power of Attorney and Enduring Guardian documents.
Separation and Divorce significantly impact your estate planning. To ensure your Will and Estate Planning align with your wishes after separation or divorce, please contact our friendly team today on 02 4944 2008.