Divorce, ending a de facto relationship or terminating a civil partnership can be emotionally difficult, but have you ever thought about what happens to your Will if one of these events occurs?
Does divorce or ending a relationship affect your Will?
Yes. In Queensland, certain relationship changes can affect provisions in your Will involving your former partner.
Under the Succession Act 1981 (Qld), different rules apply to divorce or annulment, the termination of a civil partnership and the ending of a de facto relationship.
Generally, these events can revoke provisions in your Will that:
- give a gift to your former partner; or
- appoint your former partner as executor, trustee, advisory trustee or guardian.
Depending on the circumstances, the affected part of your Will is read as if your former partner had died before you. This means that your ‘reserve’ beneficiaries and executors named in your Will may become relevant.
However, the legislation contains important exceptions and qualifications. For example, certain appointments involving trusts for children may not be revoked, and the statutory provisions may not apply where a contrary intention appears in the Will.
Divorce and your Will
Under the Succession Act 1981 (Qld), divorce or annulment can revoke a gift to your former spouse and an appointment of your former spouse as an executor, trustee, advisory trustee or guardian. It can also affect certain powers of appointment involving your former spouse.
This does not necessarily mean that your entire Will becomes invalid. The legislation deals with particular provisions involving the former spouse.
Ending a de facto relationship and your Will
The ending of a de facto relationship can also affect your Will. The Succession Act 1981 (Qld) provides that certain gifts and appointments involving a former de facto partner are revoked when the relationship ends.
There are exceptions, including certain appointments involving property held on trust for children of the former de facto partner and certain powers of appointment relating to children of both parties.
What about separation without divorce?
It is important to distinguish separation from the formal ending of a relationship.
Simply separating from your spouse does not have the same effect as a divorce under these provisions. If you are separated but remain legally married, your existing Will may continue to operate, including provisions benefiting your estranged spouse.
This is one reason why separation should be treated as a prompt to review your estate plan rather than assuming that your existing estate plan will automatically reflect your changed circumstances.
What about the rest of your estate plan?
Sound complicated? It is.
Rather than rely on the provisions in the Act, it is best to review your entire estate plan if one of the above events occurs.
Your Will is only the beginning.
What about your Enduring Power of Attorney, the beneficiary nomination for your super fund, the beneficiary of your life insurance or the impact on jointly owned property?
These arrangements can involve separate legal rules and may not simply follow what is stated in your Will. Your relationship ending is therefore a good time to review your wider estate plan and make sure your documents and beneficiary arrangements reflect your current wishes.
What should you review after a relationship ends?
When a relationship ends, consider reviewing:
- Your Will, including beneficiaries and substitute or reserve beneficiaries.
- Your executors and trustees, particularly if your former partner was appointed.
- Your guardians, where relevant.
- Your Enduring Power of Attorney and the people appointed under it.
- Your superannuation beneficiary nomination.
- Your life insurance beneficiary arrangements.
- Jointly owned property and how it fits into your overall estate plan.
Reviewing these arrangements together can help identify inconsistencies between your Will and the other documents or assets that form part of your estate plan.
Why should you review your Will after divorce or separation?
A relationship breakdown can significantly change who you want to benefit from your estate and who you trust to manage it.
Even where legislation automatically changes certain provisions in your Will, relying on those provisions may not produce the estate plan you would choose today. Reviewing your Will allows you to consider your beneficiaries, executors, trustees and guardians, as well as the wider arrangements that may affect your estate.
Frequently asked questions
Does divorce revoke my Will in Queensland?
Divorce does not necessarily revoke your entire Will. Under the Succession Act 1981 (Qld), divorce can revoke certain gifts and appointments involving your former spouse. The precise effect depends on the provisions of your Will and the circumstances.
Does separation revoke my Will in Queensland?
Separation by itself does not have the same statutory effect as divorce. If you are separated but have not divorced, provisions in your Will benefiting your spouse may continue to operate. This makes reviewing your Will particularly important after separation.
What happens to my Will when my de facto relationship ends?
The ending of a de facto relationship can revoke certain gifts and appointments involving your former de facto partner under the Succession Act 1981 (Qld). The legislation also contains specific exceptions and qualifications.
Should I update my Will after a relationship breakdown?
It is sensible to review your Will and wider estate plan after a relationship breakdown. This allows you to check your beneficiaries, executors, trustees and guardians, as well as arrangements involving superannuation, life insurance, jointly owned property and your Enduring Power of Attorney.
Can my former partner still receive something from my estate?
The answer depends on the circumstances, the terms of your Will and the nature of your relationship. The statutory rules can revoke certain provisions involving a former partner, but they do not necessarily determine every aspect of your estate plan.
Get legal advice about your estate plan
Obtain legal advice so that the end of the relationship does not become the beginning of estate planning problems.
If you have recently divorced, separated from a partner, ended a de facto relationship or terminated a civil partnership, it is worth reviewing your Will and wider estate plan to make sure they continue to reflect your wishes.
Contact our team to discuss reviewing your estate planning documents and arrangements.