One of the most important (and overlooked) steps following separation is the need to update your Will, and if applicable, revoke your Power of Attorney and Enduring Guardian. This becomes particularly relevant in the case where couples have created reciprocal Wills. It is not uncommon for couples to be separated for many years and have an agreed property settlement without having obtained a divorce. However, if a spouse dies unexpectedly during this period, then the surviving spouse will inherit the entirety of the Estate due to the fact that the parties are still “married” under law. This can be the case even if there is no Will in place.
What this means is that, despite having entered into a settlement regarding the division of matrimonial assets and a Court making orders confirming that settlement, if a divorce is not finalised prior to your passing and you have not updated your Will, your spouse will still receive the entirety of your Estate under the laws of intestacy.
Imagine going through an entire Family Law property settlement just to end up handing everything over to your ex-spouse!
So, there are two take-away points here:
- Following separation, update your Will as soon as possible to ensure that your Estate passes in accordance with your wishes; and
- Don’t put off getting a divorce!
Updating your Will is a simple process and we are happy to refer to you our Estate Planning Department who can prepare a Will for you or update your current Will if you already have one.
If you require more information on the above article contact Nevine Youssef on (02) 4626 5077 or nyoussef@marsdens.net.au
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
