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The effect of marriage, separation and divorce on your Will

Marriage and your Will

Section 14 of the Wills Act 1970 (WA) provides that a Will is revoked by the marriage of the testator. If you have married since you made your Will, that Will is no longer valid. If you die without making a new Will, your estate will be distributed under the intestacy laws of Western Australia. Your spouse will receive the first $50,000 of your estate and 1/3 of your remaining estate. The other 2/3 will be shared equally between your children.

It is, however, possible to make a Will in contemplation of marriage. Such a Will would still be valid after your marriage.

A Will made in contemplation of the marriage of the testator is void if the marriage is not solemnised, unless the Will provides to the contrary.


Divorce and your Will

Section 14A of the Wills Act 1970 (WA) provides that a Will is cancelled by the ending of the will maker’s marriage.

A marriage ends:

  • when a divorce order terminating the marriage takes effect under the Family Law Act

  • on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia or the Family Court of Western Australia or

  • on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act.

However, as with the effect of marriage on a Will, there are some exceptions to this.

If there is contrary intention in the Will or other evidence establishing such an intention the Will would still be valid.

Finally, the laws about how the ending of a marriage affects a Will relate only to divorce or annulment. They do not relate to separation. In other words, if you separate but remain married and you die your Will would take effect as if you and your spouse were still happily married.


Separation and your Will

For married and de facto couples, separation will not revoke your Will. If you have separated but not divorced, you have left your estate to your spouse in your old Will and you die then your spouse will get your whole estate. Separation does not affect your Will if you separate following a de facto relationship.


The effect of marriage, de facto relationship, separation and divorce on your enduring power of attorney and enduring power of guardianship

Marriage, de facto relationship, divorce and separation do not affect the validity of an Enduring Power of Guardianship and Enduring Power of Attorney.

An appointor or a donor who gets married or starts a de facto relationship, but wants their existing Enduring Power of Guardianship and Enduring Power of Attorney to continue does not need to take any action. An appointor who wants their spouse or de facto partner to be their enduring guardian and attorney, rather than the persons they previously appointed to those roles, will need to revoke the Enduring Power of Guardianship and Enduring Power of Attorney and sign new documents appointing their spouse or de facto partner.


Separation and your binding death benefit nomination

For many people, their superannuation is one of their biggest assets.

If you separate, your superannuation death benefit nomination is not cancelled automatically. If you have a binding nomination in place naming your spouse or de facto partner as your beneficiary, you should make a new binding nomination directing your superannuation death benefits either to your children or to your estate. Any superannuation death benefits that are paid to your estate will be dealt with as directed by your Will, so it is important to make sure that your Will is updated following your separation.


Divorce, separation and life insurance

Usually, separation and divorce do not revoke your life insurance policy.

The consequences of not reviewing your life insurance policy at the time of separation and divorce can have a devastating effect on your estate plan and the loved ones you leave behind.


Conclusion

Making a Will and signing other estate planning documents is not a once in a lifetime task. You should review your estate plan regularly, particularly when major changes such as marriage, separation and divorce occur in your life. Call us now and request our separation and divorce estate planning checklist.