Parties often overlook the effect of separation on their Wills, Enduring Powers of Attorney and superannuation documents.
The risks of not reviewing and updating these documents post separation are significant.
How your Will is effected
Marriage: Revoked, unless the Will was made in contemplation of the marriage.
Separation: No effect — make a new Will to reflect your current circumstances and wishes.
Divorce: Partially revoked, unless the Will was made in contemplation of the divorce.
If not made in contemplation, your former spouse:
Will not:
- receive any distributions / gifts
- act as your executor
Can still:
- act as guardian and trustee of assets gifted to your children
- claim against your Estate if family law proceedings were not commenced or finalised prior to your passing
How your Enduring Powers of Attorney is effected
Marriage: No effect — update to reflect your current circumstances and wishes.
Separation: No effect — sign a revocation immediately or make new Enduring Powers of Attorney.
Divorce: No effect — sign a revocation immediately or make new Enduring Powers of Attorney.
How your Superannuation is effected
Marriage: No effect — immediately revoke or make a new nomination.
Separation: No effect — immediately revoke or make a new nomination.
Divorce: No effect — immediately revoke or make a new nomination.
Other at risk assets
- Insurance — have you nominated your former spouse as the beneficiary of your insurance policies?
- Assets owned jointly with your former spouse — these will pass automatically on your death unless ownership is changed.
- What role does your former spouse play in your corporate, trust and business structures or as a beneficiary of any trusts?
To avoid unintended consequences, please contact a member of our Estate Group on (03) 8600 8885.
* In this summary, ‘spouse’ includes partners by marriage and domestic / de facto relationships.
Note: This update is a guide only and is not intended to constitute legal advice.