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Why updating your Will should be at the top of your To-Do list after separation

Monday 27th of November 2023
By: Stephanie Svendsen, Practice Support Manager and

Hoping I don't need you again, but if I do, it will be a pleasure.

In his piece for MamaMag, Nicholas Parker explains why updating your Will should be top of your To-Do list post separation.

Separation is a highly stressful time and for most people, estate planning is low on their list of priorities in this situation.  But what happens in the event that someone passes away after separating from their partner without updating their Will? 

Separation does not necessarily revoke your Will but divorce does have the effect of revoking a Will to the extent that it makes provision for a former spouse.  The issue with this is that an Application for Divorce can only be made twelve months after the date of separation, with people often waiting even longer than this to apply.  It is therefore worth considering updating your Will following separation to ensure assets are passed to the people you want, rather than your former spouse. 

What happens if I die without a Will?

Dying without a Will is known as dying 'intestate'.  This means that your assets will first pass to your 'partner', which includes a 'spouse'.  There is no provision in the Administration and Probate Act 1958 ('The Act') to exclude partners that are separated but not yet divorced so this could result in a situation where your estate, or the majority of it, will pass to your former spouse.

What about de facto relationships?

The Act's definition of 'partner' also encompasses 'domestic partner'.  The estate of someone that dies intestate will not pass to their former domestic partner if at the time of death they had not been living together or if they had not been living together on a genuine domestic basis.  This can be addressed by ensuring you have an up to date Will in place.

What about my super?

Superannuation entitlements do not automatically form part of your estate upon your death.  If you have failed to prepare a Binding Death Benefit Nomincation, or you did not update your nomination, it's possible that your superannuation will be paid to your former partner when you die.  If you have recently separated, it is advisable that you review your binding nomination with your fund and update it if necessary.  

Despite the competing priorities associated with separation, updating your Will is advisable to ensure your assets are gifted to the people you want.

You can read the full article here: Is your will up to date?

If you have any questions or wish to update your estate planning documents, please call our team of experienced Wills and Estate Lawyers on 03 9804 0035.

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