It is important to understand the effect marriage, divorce or separation can have on your Will.
Effect of marriage on your will
When you marry, any existing will is automatically revoked and becomes no longer valid.
If you do not make a new one, then when you die the law of intestacy decides how your assets are divided. This may not be a problem for many first-time marriages, but if you have children from a previous marriage or other people you wish to leave some assets to, then they may miss out.
The only time where a will does not become invalid upon marriage is if you made a will prior to marriage that expressly states that it is made in contemplation of marriage or words to that effect.
Effect of divorce on your will
Marriage separation does not make your will void or invalid. Your spouse may inherit any property left to them or if names as executor, they are entitled to take up the role, regardless of your separation. As a result it is crucial to update your will upon separation to prevent your former spouse from being entitled to a benefit under your estate.
If your marriage is ended by a court order (like divorce or annulment) the result is usually that any disposition to or appointment of a divorced spouse is revoked. For example, unless there is a contrary intention expressed in the will, your former spouse will be disqualified to act as executor of your estate and any gift left to them are revoked. However, to ensure you estate reflects your changed personal circumstances, you should update your will.
Effect of marriage or divorce on superannuation death benefit nominations
If you have a binding nomination, your superannuation will not be deal with as an asset of your estate and therefore will not be distributed in accordance with your will. A binding nomination provides the greatest level of certain. If you have allowed you nomination to lapse, then the nomination will identify your preferred beneficiaries. However, it is ultimately up to the trustee of your superannuation fund to decide who receives your benefit. Whilst marriage and divorce may make your nomination invalid, whenever your life circumstances change it is important to update your nomination to reflect your new circumstances for certainty.
For further information on wills, please contact Carly Burke at carly@ballaratlawyers.net.au or on 5303 0284.
The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.
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