Relationship changes like getting married, separated or divorced have important implications for your Will. We look at what they mean and what you need to do to keep your Will up to date.
Whether your status is “married”, “divorced” or “it’s complicated!”, there’s no doubt you’ll benefit from getting your affairs in good order by making a Will.
And if you already do have a Will, you may wonder what effect a new relationship, or changes to your existing relationship, will have on the validity of your Will.
In this post, we take a look at the legal impact that getting married, separated or divorced can have on your Will.
How does marriage affect your Will?
Many people assume that if they're married, they may not need a Will because everything will go to their partner with or without a Will in place. This is not necessarily the case - without a Will your estate will be divided according to the laws in your state, rather than according to your wishes. Having a Will is the only way to guarantee that your estate will go to the person you want it to.
Having a Will also makes it much easier for your partner to administer your affairs if you passed away. Without one, there is a good chance that they will need to go to court to have someone appointed as executor of the estate and distribute the assets. There are many horror stories of this taking months, and partners being frozen out of their assets while the courts try to untangle an estate.
Many Australians also aren’t aware of the fact that getting married revokes (invalidates) any Will that you may have made before you were married.
If you pass away without a valid Will, the laws of intestacy come into play and your spouse will usually inherit a significant part of your Estate (depending on the state you are in). In the case of a first marriage, this may be exactly what you would have intended. In the case of a second or third marriage, or if you have children from a past marriage, it may not be.
Getting married is an important time to consider whether an existing Will reflects who you want to pass your assets to if something happens to you.
There is an important exception to this rule when you make a Will “in contemplation of marriage.”
Perhaps you make a Will while you’re in a long term relationship and you fully intend to get married. You can include a provision in your Will stating that it’s made “in contemplation of marriage”. In this situation, if you then get married:
So even though the law makes some concessions to recognise Wills made before you’ve officially “tied the knot”, it's always a good idea to update your Will with every major change in your relationship status to make sure that it is effective and valid.
What about same-sex marriages?
If you made a Will before same-sex marriage was legalised in Australia and are now married, there is a chance that your Will may not pass the “in contemplation of marriage” test. It's best to update your Will to reflect your new circumstances and to ensure both you and your spouse are protected.
How does separation affect your Will?
If you separate from your husband or wife but remain married it’s crucial to consider updating your Will because if you pass away before divorcing:
Is a Will still valid after divorce?
We all know the statistics and the fact that a large percentage of marriages don’t end happily. After couples part ways and divorce there can be unfortunate consequences for their finances and family relationships.
The effect of divorce on a Will in Australia differs depending on the relevant state or territory.
In some states, divorce will automatically make your entire Will invalid unless it was made “in contemplation of divorce”.
In others, it has the effect of making only parts of the Will invalid, such as the ability of an ex-husband or ex-wife to be an Executor, a Guardian or an asset Beneficiary (unless you’ve made your intentions to the contrary perfectly clear).
Given the variations in the laws regarding divorce and inheritance in Australia, it’s important to get further advice so that you can understand when it’s necessary to update your Will after divorce has taken place. No matter which state you are in, however, it is generally strongly recommended that one of the first things you do following a divorce is update your Will.
It’s important to keep your Will up to date through relationship changes
At Safewill we understand how important it is to have a Will that reflects your personal circumstances at every point in your life.
Our secure online Will platform gives you the option to quickly set up a bespoke Will and easily update it whenever your relationship status changes.
Safewill's subscription service allows you to update your Will whenever you need, and receive a new Will right away to print and sign. Click here to find out more about the benefits of updating your Will regularly with a Safewill's Subscription.