Marriage, Divorce and Wills: What You Need To Know

by Resolve Conflict on May 29, 2019

Marriage, Divorce and Wills: What You Need To Know - Resolve Conflict Family Lawyers

Life changes and with it so must your Will. Worryingly, a lot of people are unaware of the effect marriage, entering into a de facto relationship, divorce or separation can have on their Will.

What is a Will

A Will is a legal document that says how your estate will be distributed after you die. The property that you leave when you die is known as your estate.

Making a will is extremely important to ensure your assets go to the people you want to benefit upon your death. It is not compulsory to make a will, however, if you don’t, you die intestate – and your estate and its assets will be distributed according to intestacy laws.

In Victoria, succession laws set out the order in which your relatives will receive your assets. The state will receive your assets if you have no eligible relatives.

For this reason it is important to regularly review your Will, especially if any of the following occurs;:

  1. You get married;
  2. You enter into a domestic relationship;
  3. An executor and/or beneficiary of your Will dies;
  4. You have children or grandchildren (including biological, step or adopted); and
  5. You and your spouse separate or divorce.

Wills and Marriage

Marriage or re-marriage invalidates your Will unless your Will clearly indicates that it is made in contemplation of that marriage. 

If you fail to update your Will to reflect this major relationship change, a large part of your estate may be awarded to your spouse. This may not be a problem for many first-time marriages, but if you have children from a previous marriage or other people you wish to provide for, it is worth taking control of your estate.

Wills and De Facto Relationships

If you are in a de facto relationship it is important to remember that if you should die without a Will then, under the Act, your partner will not be entitled to benefit from your estate unless the two of you have lived together for a continuous period of two years immediately before your death, or have a child together.

If you have not lived for two years or had a child together, however intend for your partner to be the beneficiary to part or all of your estate, should you die, you need a valid Will that indicates your wishes.

Related Article: Top 5 Misconceptions About De Facto Relationships You Need To Stop Believing

Wills and Separation

The separation period is a critical time to update your Will, as marriage separation does not have an effect on your Will. This means that should you fail to update your Will and you die whilst separated, before your divorce is finalised, your spouse may inherit any part of your estate you had previously intended to leave to them. Likewise, if your Will names your spouse as your executor, they will be entitled to take up that role regardless if you wanted them to or not.

Wills and Divorce

Divorce affects your will, but it does so differently in each state and territory. In Victoria upon divorce, any provision in your Will that relates to your former spouse becomes invalid. Again this is an important time to revisit your Will.

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au

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