Marriage, separation and divorce are significant life events. They are also critical triggers for reviewing your estate planning documents.
Victorian law sometimes automatically changes the effect of your Will, and sometimes it does not, even where your circumstances have changed.
If you experience any of these relationships changes, you should review your Will and Power of Attorney to ensure that they remain valid and reflect your intentions.
Marriage
What is the effect of marriage on a Will?
If you make a Will and subsequently get married, that existing will is automatically revoked.
This means the Will you made before marriage will no longer apply after your marriage. If you die without making a new Will, you will be treated as not having a formal Will in place.
The only exceptions to this rule are:
- If your will was expressed to be made in contemplation of marriage (for example, it clearly states it is intended to take effect whether or not you marry your current partner); or
- To the extent that your Will made a disposition or appointment to your partner before marriage, those clauses will remain effective.
This rule has existed for over 150 years, it goes all the way back to the original legislation on Wills in Victoria, as Clause 16 of The Wills Statute 1864!
The law assumes that a person who made provisions in a Will in favour of people other than their partner would no longer intend for those provisions to apply after their marriage.
This does not mean that you have to provide for your spouse in your Will in Australia. If you get married and still intend to benefit people other than your spouse in your Will, you can execute a new Will after marriage to confirm your testamentary intentions.
What is the effect of separation on Power of Attorney?
Separation does not automatically revoke a Power of Attorney.
If your former partner has been appointed as your attorney, they may still retain legal authority to make financial or legal decisions on your behalf unless you formally revoke that appointment.
Examples
Widower remarries — what happens to their Will benefiting their children?
Scenario
After Michael’s wife passes away, he makes a Will in favour of his two children.
Years later, Michael remarries. His second wife is financially comfortable, so Michael still intends to provide his estate to his two children. He believes his Will achieves that.
What happens?
His remarriage automatically revoked his Will. The law assumes that Michael’s Will is now outdated.
If Michael dies without making a new Will after remarriage, he will be treated as having died intestate (that is, without a valid Will).
Under Victorian intestacy rules, his second wife will be entitled to a substantial portion – or all – of his estate, depending on size of his estate.
Why this matters
He thought he had “sorted” his estate planning but remarriage undid that planning entirely.
Separation
What is the effect of separation on a Will?
Separating from a spouse (whether married or de facto) does not automatically change or revoke a will or any of its provisions.
For married couples, their Wills continues to take effect until they complete their divorce or a new Will is signed.
Similarly, a person who provided for their former de facto partner must execute a new Will.
If a person unexpectedly dies after separation but before divorce or signing a new Will, their existing Will could still provide for their ex-partner, despite these intentions being outdated.
Therefore, if you no longer want your ex-partner to inherit under your Will, you should make a new Will as soon as possible after separation.
What is the effect of separation on Power of Attorney?
Separation does not automatically revoke a Power of Attorney.
If your former partner has been appointed as your attorney, they may still retain legal authority to make financial or legal decisions on your behalf unless you formally revoke that appointment.
Examples
Person dies with separated wife and new partner (Case Study)
Scenario
In the recent Victorian case of Nicholson v Sheils [2026] VSC 18, Christopher Sheils died without a Will at 64 years of age. The deceased had been separated, though not divorced, from Jiembra Sheils since about 2003, with financial and domestic ties severed by 2005. They had two children together.
In 2016, Sally-Anne Nicholson (who had also been previously married) and Mr Sheils commenced an intimate relationship and remained de facto partners until his passing from a heart attack in November 2023.
The outcome
As he was not divorced, he died with multiple partners – Mrs Shiels and Ms Nicholson. The default position is that the partners are entitled to equal shares of the estate. However, in such circumstances, the Court is authorised to make a distribution order and in this case, determined that Ms Nicholson should receive the entire estate.
Impact
It is unknown whether the deceased would have wanted to gift part or all of his estate to his children, who he maintained a relationship with.
Further, even if the outcome of Ms Nicholson receiving his entire estate was consistent with his intentions, the legal fees (and stress) incurred by her having to prove their de facto relationship and seek the Court’s distribution order in her favour significantly dented his modest estate of $277,300.
Separated person with children dies with old Will
Scenario
Barry separated from his wife 6 months ago. They have two adult children.
His old Will leaves everything to his wife and alternatively to the children.
He intends to make a new Will later in the year after sorting out his divorce and property settlement.
He unexpectedly dies before divorce.
What happens?
Although Barry’s intentions have changed, his wife is still entitled to his entire estate and is appointed as his executor.
His children are entitled to make a claim for provision from the estate, but if their claim is disputed by the executor, the dispute could easily cost the children and the estate thousands of dollars each.
Further, if the dispute proceeds to litigation, a Court is only entitled to make an order providing for the applicant’s “proper maintenance and support”, based on their financial needs. On that basis, even if the Court agrees that Barry probably would have wanted his estate to be split between his children, the Court is limited in what it can award the children from Barry’s estate.
Impact
Barry’s children are severely impacted by him not managing to make a new Will following separation to document his testamentary intentions.
Divorce
What is the effect of divorce on a will?
Divorce affects your Will but does not revoke it entirely.
Instead, any disposition or appointment made in favour of the former spouse is treated as void, as though they had died before you.
For example, if a husband gifted his entire estate to his wife and alternatively to his children, and later divorces his wife without updating his Will, his children would be entitled to the estate.
The law assumes that following divorce, a person would no longer intend to benefit their former spouse.
However, if you do not want this rule to automatically apply, you can make a Will during your period of separation in contemplation of divorce, to confirm that you want your Will to take effect despite a subsequent divorce.
Similarly, if you divorce and still want to make a gift or appointment in your Will in favour of an ex-spouse, you can make a new Will doing so.
What is the effect of divorce on a Power of Attorney?
In Victoria, divorce does not automatically impact or revoke a Power of Attorney appointment, even if your ex-spouse is appointed as your attorney.
If your former spouse is appointed as your attorney, they could still have legal authority to make decisions and transactions on your behalf, unless you formally revoke that appointment.
This can be particularly concerning if you suddenly lose decision-making capacity, for example resulting from an accident or stroke, as you may no longer be able to change the appointment yourself and could be vulnerable to abuse.
Following separation or divorce, if you no longer want your former partner to act on your behalf, you should execute a new Power of Attorney appointment that revokes your existing appointment.
Examples
Divorced person didn’t change Power of Attorney following divorice
Scenario
Jen is divorcing her husband, Brad. She is advised by her lawyer to revoke or update her Enduring Power of Attorney that appointed Brad as attorney on her incapacity.
She does not get around to this and years later, Jen loses cognitive capacity.
What happens?
Brad has full legal authority to make decisions and transactions on Jen’s behalf, including selling her property and accessing her bank account.
He is obliged to act in her best interests, but would need to be closely monitored for any abuse to be detected.
Jen’s other family members can apply to VCAT for Brad to be replaced by someone more suitable, but this will take time and could be costly.
Impact
If not already done so following separation, a person should change their Enduring Power of Attorney as part of the divorce process.
Key Takeaways
- Marriage, separation and divorce are major personal transitions. They are also critical triggers for reviewing your estate planning documents.
- Assuming that your Will or Power of Attorney “will sort itself out” can lead to unintended and sometimes serious consequences.
- If you are unsure whether your documents still reflect your intentions, you should seek advice and review them promptly.
If you have recently married, separated or divorced, it is important to ensure that your Will and Power of Attorney still reflect your intentions and operate as expected under Victorian law.
If you would like advice about updating your estate planning documents, please contact Joel Benjamin, Senior Associate, jbenjamin@kcllaw.com.au, +61 3 8600 0728.