A Divorce Does Not Cancel Your Will

A Divorce Does Not Cancel Your Will

by Jacqui Brauman

I’d like to talk about when a will is valid or not. When does a will automatically become invalid, because it does if you remarry.

So if you do a will and then you get married, quite often your will is automatically invalid after your marriage, unless you did the will in the first place in contemplation that you were having this marriage. However, divorce does not do the same thing, nor does separation.

So if you divorce, your will from before that where you probably left everything, husband and wife leave everything to each other, after you divorce, it’s treated as if your spouse has passed away. So you don’t actually have to redo your will to remove your spouse. That’s happened by way of the divorce.

However, another consideration is that a separation doesn’t achieve the same result as a divorce. So if you separate but you’re not divorced, your will is still valid. This is where I see a lot of people getting a little bit caught up. In the family law space we often say, “Don’t worry about getting a divorce, because you don’t really need a divorce unless you want to get remarried.” You need to have your kids’ plans sorted out, you need your finances separated; however, you really don’t need a divorce to finalize things between yourselves. However, it’s important to think about that from a succession perspective–you at least need to redo your will.

If you are separated but not divorced, it’s important to update your will. If you get divorced fairly quickly–within 12 months of separation–your previous will no longer applies. It treats your ex as if he or she has passed away; therefore, everything goes to your children equally. However, if you’ve changed your mind about providing for him or her and his or her family, it might be time to make some new provisions in your will.

If you’re seeing a lawyer anyway to negotiate financial matters during a divorce, use that appointment to get instructions for your new will. Get it signed and witnessed, and then two years after your divorce is final or things have returned to normal, take some time to make detailed plans for what happens to your assets after you die.

Forming a will is important for everyone, but especially if you have children. Things get more complicated when one person’s estate must provide for minor children along with another party. But with a little forethought, you can devise a plan that helps to avoid conflict and ensures that your property and assets are distributed according to your wishes.

If you need any help drafting or updating your wills, don’t hesitate to get in touch with our team. Call 1300 043 103 or send an email to admin@tbalaw.com.au.