Separation and your Estate

Recently reported in the media is the story of a NSW man who died unexpectedly without a Will and his entire $600,000 estate went to his estranged wife, even though the couple had already split their assets and moved on with their lives.

The marriage was a short – lasting only 3 years. After separating the deceased paid his estranged wife $35,000 in exchange for keeping the marital home. They both had new partners. The deceased had been served with divorce papers months before his death, however never got around to signing them. His missing signature on the divorce papers meant that that he was still officially married to his estranged wife. As he did not have a Will, the estranged wife was entitled to his entire estate. His current partner did not have a claim to his estate because they had been living together for less than two years.

It is not unusual for separated couples to sort out their property before the divorce is finalised. Nor is it unusual for people (particularly younger people) to die without a Will . However, between separation and divorce is arguably one of the most important time to ensure you have a Will in place that reflects your changed circumstances.

Reviewing and updating your Will is just has important as creating one.

Effect of Marriage
Many Australians are unaware that their Will is made invalid when they marry. The only time marriage does not revoke a Will is where the Will expressly states that it was made “in contemplation of marriage”.

Effect of Separation
In Victoria, separation does not have an effect on your Will. If you fail to update your Will upon separation and you pass away, your spouse will inherit any property left to them and they will be entitled to act as executor if so named.

Effect of Divorce
In Victoria, divorce will revoke your former spouse as your executor or any gift left them.