Separation & your Will

Separated spouses need to carefully review their Wills – presuming they have one.

Separation does not revoke or affect your Will. Any gifts in your Will to your separated spouse will continue to be effective. If a spouse dies without a Will, they die intestate. This means that their property will be distributed according to a prescribed system by which in most cases their separated spouse will receive all or the majority of their assets.

Gifts made by a spouse in their Will are revoked upon divorce. If their Will left all of their assets to their former spouse, it will no longer be effective, and there will be confusion as to the entitlement of other possible beneficiaries.

Most spouses purchase real estate (especially their primary residential property) as joint tenants. This means that the interest of one joint tenant automatically passes to the other on their death – irrespective of provisions made in their Will.

Separating spouses should therefore consider making a new Will. Matters to be considered are:

  • who is an appropriate executor and trustee;
  • who will be the new beneficiaries;
  • when should children receive their entitlements – eighteen or some specified older age;
  • appointment of guardians for children under the age of eighteen years;
  • provision for the education and support of children;
  • superannuation and life insurance benefits are generally not distributed according to the Will, but according to the beneficiaries nominated. Separating spouses should therefore also consider who they have nominated as beneficiaries to their superannuation fund or life insurers. Historically, the payment of death benefits from superannuation funds was ultimately at the discretion of the trustees of the fund. Some funds now provide Binding Death Benefit Nominations which leaves the trustee no option but to pay the benefit to the nominated beneficiary – irrespective of changes in the relationship between the beneficiary and the deceased. If you have made a Binding Death Benefit Nomination, it is essential therefore that you review the beneficiary from time to time;
  • in addition to changing their Will, a separated spouse should also consider the following estate planning issues:

Power of Attorney
A Power of Attorney authorises a person or persons to deal with your financial affairs on your behalf. The appointment must meet various formalistic requirements and be signed by you and your designated Attorney before a witness. The extent of the authority given to your Attorney can be defined by you. The Power of Attorney enables the appointed person to look after your assets and financial affairs on your behalf. This can include allowing them to act on your behalf when you are no longer capable of making financial decisions for yourself due to illness or disability.

Enduring Guardian
The appointment of an Enduring Guardian allows you to appoint a person or persons to make decisions about your personal welfare when you are no longer able to do so yourself. The appointment must be in writing and signed by you. The authority only comes into effect once you are incapable of making decisions for yourself.

Separating spouses need to carefully review their wills.

Separation does not revoke or affect your wills. Any gift from your will to your separated spouse will continue to be effective.

This page will assist you in considering how to provide for the distribution of your property in the event of your death following separation.