Do I need to update my will after separation or divorce?

Separating can be incredibly stressful and there are many things to think about such as a property settlement and parenting arrangements. It is also important to review and update your will and enduring documents. Here are some important reasons why:

1. You might be surprised to learn that separation (unlike divorce) does not revoke your will or enduring power of attorney (EPA). Unless you update your will and EPA, your ex-spouse may:
   • receiving your estate if you die;
   • be able to make health decisions for you under an existing EPA if you lose capacity; and
   • be able to deal with your financial assets under an EPA.
2. If you have divorced, your will and enduring power of attorney may be revoked and your estate plan might not be adequate.
3. While the ending of a de facto relationship can revoke a will, the end of a de facto relationship can be difficult to determine and your family could find themselves embroiled in an estate despite if your will hasn’t been updated after separating from your ex de facto spouse.
4. If you don’t have a will, you do have an estate plan which is given to you by the Government. This is called the ‘rules of intestacy’ which apply when you don’t have a will. If you are separated from your spouse (but not yet divorced) then your spouse will still be entitled to a share of your estate under these rules.
5. Your superannuation nominations might still nominate your ex as a beneficiary. Unless this is updated, your ex might be entitled to your superannuation death benefits.
6. You might own your home as joint tenants with your ex-spouse. This means that if you die, your ex-spouse will automatically be entitled to your share of your home. Steps can be taken to sever this joint tenancy.
7. If you have a family trust it should be reviewed to understand what powers your ex-spouse might have to change the trustee or take on this role after you pass away.
8. You might feel strongly that your ex-spouse is no longer the right person to manage any money you leave to your children, particularly if he has or does re-partner. Updating your will gives you control over who manages any funds gifted to your children in your will.

If you have recently separated or are contemplating separation, we can help you with our tailored ‘Recently Separated’ fixed fee estate planning package.

If you have any questions or need assistance with your estate planning, please call us on 07 3174 5730 or book a free chat online.