28 Sep 2021Did you know if you were to get married and then die soon afterwards, the fact of your marriage could revoke a will you had written earlier? The law would deem you to have died intestate, which means you died without leaving a valid will.
Your will would be revoked under conditions included in section 12 of the NSW Succession Act. This may not reflect your wishes for how your estate should be divided.
Why you need to review your will before you marry
Once you decide to marry, it is a good idea to redraw your will. There may be a whole set of new factors to consider once you are married, and not just regarding your spouse.
What about children from a previous marriage, or siblings you may have in your will who you no longer feel the need to support?
If the will is specifically written with impending marriage in mind, it will not be revoked.
How are your assets divided if you die intestate?
Intestacy rules in NSW, as outlined in Chapter 4 of the Succession Act, usually mean that if you die just after exchanging vows with your partner, the bulk of your estate will go to your spouse.
This can become complicated if there are children, especially if they are from a previous marriage.
What happens to your will after divorce?
As detailed in section 13 of the Succession Act, a divorce can revoke a will, but often only some aspects of it. For instance, any assets that have been directed to the former spouse and any appointment of them as an executor, trustee or guardian will be revoked upon divorce.
The Act also recognises a “domestic partnership” or de facto relationship, but the parties must have been a couple for two years or had a child together.
Does separation provide legal grounds to revoke a will?
It is important to note what happens during the 12-month separation required before the Family Court will finalise your divorce.
Separation has no impact on your will if you die during this period. Therefore, if you have nominated to leave assets to your separated spouse in your will, these will still be distributed to that person, even though you had split up.
If you separate, intend to divorce and don’t want any of your assets to go to your ex, it is important to update your will as soon as possible.
Former spouses can make claim on estate of ex-partner
A property settlement upon divorce or separation will not always finalise financial matters between you and your ex. In New South Wales, the ACT and South Australia, the law allows former spouses to go to court to seek part of the deceased’s estate, regardless of the terms of the will. (For more information please see How do you deal with an intestate estate? Contesting an estate without a will and Family provision claims in NSW – spare us the details and curb your expectations.)
With this in mind, it is wise to obtain advice from a lawyer who specialises in wills and estates. They will draw up your post-divorce or post-separation will, so if you die, your assets will go where you intended.
