Updating Your Will After Separation
A separation is sure to be a time of great upheaval for all involved, with potentially life-altering decisions being made for the future of yourself, your former partner, and your children. While a separation can be taxing in all respects, it’s important not to allow the matter of your Will to fall into the background.
While a Will feels like something of a morbid topic of discussion, updating your will is an important step in reducing conflict and confusion after separation, and the only way to create certainty about where your inheritance will go after death.
Here are some major reasons why revisiting and revising your Will as part of your separation journey is critical – even if you are separating amicably.
During a long-term, committed relationship (de-facto or wedded) your partner typically becomes the primary individual responsible for many of the decisions (including regarding assets) that arise in the event of your death – this is either something you have laid out explicitly in your Will, or occurring by default due to the nature of your relationship. In many instances, this is a reassuring backstop to have in place, especially if you have children. During a separation, it is highly unlikely that you want your former partner to be the one responsible for those choices any longer.
If you are married, but in the process of separating, your former spouse remains as the default executor of your Will until a divorce is finalised. Relying on your divorce to be finalised to update your Will or Powers of Attorney is high risk, because it takes at least 15 months from separation to divorce. Under your old will, or the intestacy laws (if you die without a will), your ex will be treated the same even though you are separated as if you are happily married!
In a de facto relationship, your former partner may still be elected as your ‘next of kin’ should your Will be outdated (or non-existent), making them responsible for important medical and financial decisions, even some time after the relationship has concluded. For De Facto couples separating they are more at risk in some respects, as they don’t have the protection of a Divorce Order.
Amicable or not, the most important reason for your Will is the clarity and certainty it affords. While state laws attempt to make some provision for individuals who do not have a comprehensive Will at the time of their death (it isn’t a ‘free-for-all’), they are typically unable to afford consideration to everyone or everything you would prefer to have included in your Will. The only way to tell your story about why your ex shouldn’t inherit will be through litigation. You don’t want to rely on litigation. Less people are eligible to make a claim than you think. eg a child over 18 may not even have a claim if they are not financially dependent on you.
Superannuation isn’t automatically an estate asset and you will have no certainty with what happens with your Superannuation. If you leave your superannuation to your children under 18, it is likely the trustees would release it to the other parent to manage it for them.
Simple Separation is a complete Mediation and Legal information service that assist couples to legally finalise their separation from start to finish online. All legal services are provided by our preferred panel of the best independent Family Lawyers, Estate Planning Lawyers and Conveyancers who share the same philosophy - to separate simply, fairly and respectfully.