What do I need to be aware of with my will when entering a relationship or separating?

Either getting married, entering a civil union, beginning a de facto relationship or separating from your spouse or partner can have unintended consequences on your will. To ensure your will continues to be reliable after beginning or ending a marriage, civil union or de facto relationship, it is best to seek legal advice on updating your will to confirm that your property will be distributed according to your wishes.

The effect of entering a marriage or civil union and separation on your will

If you have an existing will, once you get married or enter into a civil union, it will be automatically revoked (rendered invalid) and you will be deemed to have passed away intestate (without a will) if you have not made a new will. Should you die intestate your property will be divided and distributed according to intestacy laws.

Wills that are made in contemplation of a specific marriage or civil union, will not be deemed to be revoked on that event occurring. However, a will is unaffected by separation from your spouse or civil union partner unless or until a separation order or an order dissolving the marriage or civil union is obtained from the court. If either of these orders are obtained, your will remains in force but will be read as if your former spouse or partner died before you. Accordingly, your former spouse or partner will not be entitled to any benefits you have given them under your will, including their ability to be an executor of your will.

Importantly, a separation order or an order dissolving a marriage or civil union can only be obtained two years after separation. Therefore, your former spouse or partner will remain entitled to any benefit given to them under your will during this those two years if your will is not updated. For this reason, it is important to update your will to ensure that it aligns with your wishes upon your death.

The effect of commencing and ending a de facto relationship on your will

Beginning a de facto relationship has no effect on your will. Should you wish to make provision for your de facto partner in your will, you need to update your will to reflect this. If you die intestate, as set out above, your property will be divided and distributed according to intestacy laws.

Should you separate from your de facto partner, your will remains unaffected. Therefore, if you have provided for your former partner in your will, they will remain eligible to be an executor and entitled to any benefit you have provided them under your will until you update it, regardless of how long you have been separated. Accordingly, if you have provided for a former de facto partner in your will and have not updated it following separation, it is important you update your will so it continues reflects your wishes.

If you require any further information, please get in touch with MDLAW.