Divorce and Effect on a Will
Separation is the factual ending of marriage and has no legal effect on a party’s Will. So, if you fail to update your Will upon separation and you pass away, your spouse may inherit any property you left to them. Similarly, 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.
A divorce, however, is the legal ending of a marriage and the legal ending of a marriage has a very important effect on the legality of a party’s Will.
In Victoria, once a Divorce Order is made by the Federal Circuit Court, or the divorce is granted in another country, the Will of the testator (the person making the Will) revokes:-
- Any disposition to the divorced spouse of the testator made in a Will in existence at the time of the divorce; and
- The grant of a power of appointment by the will exercisable by or in favour of the spouse, other than a power of appointment exercisable by the spouse only in favour of persons who are the children of both the testator and the spouse; and
- Any appointment made by the will of the spouse as an executor, trustee, advisory trustee or guardian other than the appointment of the spouse as a trustee of property left by the will upon trust for beneficiaries that include the children of the spouse.
However, the above does not apply to any disposition, appointment or grant, if it appears that the testator did not want the disposition, appointment or grant to be revoked upon the ending of the marriage. It all depends on the wording in the Will.
Also, what happens to your superannuation or life insurance after you pass away is not necessarily determined by your Will.You should contact your superannuation/life insurance company to ask for forms to change your nominated beneficiary of your superannuation fund/life insurance policy. If you do not do this, your former spouse may receive your superannuation/life insurance after you pass away.
WHERE TO NEXT?
Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?