the impact of a divorce on your will depends upon where you live
If you divorce, what should you do about your Will? Separated or divorced spouses need to update their Wills to reflect their current desires.
When you married, you probably wrote a will that left everything to your spouse. If you had children, you probably changed the will to provide for your entire family, perhaps creating trust provisions so that a responsible adult could manage the assets you left to your children while they are still minors.
After a divorce, those provisions may or may not remain in effect. The law of the state or territory in which you live will affect the provisions of your will and it might do so in ways you do not like. Writing a new Will is the best way to assure that your intent is carried out in the event of your death.
A marriage generally revokes your prior will for most purposes. You should think about making a new Will if you marry, particularly if you want to provide for children of a prior relationship or if you do not want your new spouse to inherit all of your property. The impact of a divorce on a will depends upon where you live.
Section 17 of the Wills Act automatically revokes certain parts of your Will when you divorce, including any:
- bequest of property you made to your spouse;
- appointment of your spouse as executor, trustee, or guardian, except for trusts or guardianships that benefit children of your spouse; and
- grant of a power of appointment to your spouse, except for appointments that exclusively concern children of whom you and your spouse are parents.
If your ex-spouse is your sole beneficiary, your entire Will is revoked. The same principles apply to relationships registered under the Relationship Act. If that is not the outcome of a divorce that you desire, you would need to make a new Will after your divorce becomes final to give effect to your current intent.
The current law of Western Australia, section 14A of the Wills Act, provides that your entire Will is revoked if you divorce, unless the Will is written in a way that expresses a contrary intention. This law can be a surprising trap for those who expect the provisions of their Will to remain in effect that benefit people other than their former spouse.
In Victoria, Queensland, South Australia, New South Wales, the ACT, and the Northern Territory, a gift or bequest made to a divorced spouse is revoked by the divorce. The same is generally true of powers of appointment to the ex-spouse, other than those than benefit the children of both spouses. The same rule generally applies to the end of a registered partnership or civil union where those relationships are recognized by law.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.