How Does Marriage or Divorce Impact Your Will?

Getting married is usually a special time of celebration as two families come together, but people rarely stop and think about how their marriage impacts existing legal documents, such as their Will. If you've gotten married after writing a valid will, these previously proper arrangements can become invalid. With the extent to which your Will becomes invalid depending on the State or Territory you live in within Australia.

Today, we focus on the interplay between Australian law, relationship changes and your will- covering marriage, separation, and divorce.

How does a marriage certificate affect your Will?

Getting married is usually a special time of celebration as two families come together, but people rarely stop and think about how their marriage impacts existing legal documents, such as their Will. If you've gotten married after writing a valid will, these previously proper arrangements can become invalid. With the extent to which your Will becomes invalid depending on the State or Territory you live in within Australia.

In the Australian Capital Territory, South Australia and Western Australia, marriage voids a Will in its entirety. Even if you named your partner before marrying them as Executor of the Will or as a beneficiary, the entire document is considered invalid due to your marriage. Meaning if you go onto marry the person you've assigned your property and estate, the court may not grant this distribution if you fail to make ammendements reflecting your marriage.

In Victoria, New South Wales, Queensland, Tasmania and the Northern Territory of Australia, marriage only voids certain parts of the Will. These clauses remain valid if your partner is named in the Will as Executor or a beneficiary before marrying them, but the appointment of any other Executors or gifts made to other beneficiaries in the Will are void.

An important exception to this rule is when you make a Will “in contemplation of marriage”.

This is a clause usually written into the Will if the person writing it is concurrently making plans to get married or reasonably believes they'll be married soon. It's important to note that a Will in contemplation of marriage requires you seek legal advice from an experienced wills and estate planning solicitor. They'll take care of the bespoke legal drafting required for your will to be recognised in court- granting peace of mind that your'e children and wider family will be provided for.

If a new Will isn't made after marriage, or the Will wasn't made in contemplation of marriage, the estate (either in part or as a whole) would be handled by the court, in accordance with the laws of intestacy in the relevant State or Territory. If certain parts or all of the Will are found to be invalid, the court turns to the legislation to assess who should be authorised to handle the estate and redeem assets that belonged to the deceased. This could result in a public trustee handling your assets, rather than your family or children.

For more information on how the laws of intestacy operate in your State or Territory, visit our article here.

How does separation or divorce affect your Will?

It's important to understand the difference between separating from a spouse and getting a divorce order. If your marriage has ended, and you've separated from your spouse without going through the legal process of submitting a divorce application, there can be significant consequences for your Will in Australia.

A divorce order is made by the Federal Circuit Court and Family Court of Australia that legally ends your marriage, and voids your marriage certificate. Obtaining this form through the family court is required before you're able to re-marry, and further provides validation and security on your wills asset distribution instructions.

Separation with no legal document

In contrast, separation is the informal title for people who are not divorced but are no longer in a relationship with their marriage partner. There's no legal process or need to register that you've separated, assuming if you don't want your estate planning to change.

That's because separating from your spouse while remaining married has no impact on your Will in Australia- granting significant importance to ensuring your current Will still reflects your wishes. Even without a divorce, many want to prepare amendements in reflection of updated parenting arrangements, or relationship dynamic with their spouse.

If you were to pass away while separated but still legally married to your spouse, the absence of a divorce means this separation is not legally recgonised by the court. In this case, they will inherit your estate following the terms of your Will. If you didn't have a Will, your spouse could still likely inherit most of your estate under intestacy. Meaning your children and family could be left without any rights to family property or items.

Divorce

If you have obtained a divorce order from the family court, then this does impact the validity of your Will. In all States and Territories (with the exception of Western Australia), divorce affects your Will by revoking all mentions of your spouse in it.

Specifically, divorce requires your Will to be read as if your ex-spouse has passed away before you. This means that all references to them in your Will become void, while the rest of your Will remains valid.

In practice, this might result in your estate being distributed in accordance with the laws of intestacy, if there aren't any substitute appointments in your Will. This is because many people name their spouse as Executor of their Will, guardian of their children and sole beneficiary of their estate. Failing to make changes to this if your marriage ended, can therefore void these arrangements.

In Western Australia, divorce renders the entirety of your Will invalid, leaving you responsible for obtaining a new one.

It's important to keep your Will up to date through relationship changes

When you make a Will with Safewill, a full year of updates is included for free, with no additional fees. In most cases, it will however be necessary to reflect changing life, family and property arrangements in your will as the years go on. Safewill offers an affordable annual subscription to allow you to make these continous changes whenever you need to. Allowing you to safeguard your wishes, and minimise fees otherwise spent on attorney appointments to make these changes.

Whether you're preparing to marry the person you love the most, or starting the court process to get divorced, you should take the time to review your Will and make sure it still reflects your wishes. Doing so protects your children, your family and your estate in the reasonable likelihood these changes will impact your will.

Seek legal advice with Safewill Legal

This article is brought to you by our affiliate law firm, Safewill Legal.

If you have been appointed as Executor of a Will or are the next of kin for someone who has passed away without a Will, we're here to help.

Safewill Legal is Australia's most affordable fixed-fee Probate and Letters of Administration service. We charge one fixed fee to obtain a Grant of Probate or Letters of Administration, regardless of the size of the Estate.

Our local team can readily provide you with complimentary guidance about where to start. Reach out on our live chat or call us on 1300 942 586