Why You Should Make A New Will If You’re Separated

by Jacqui Brauman


While the topic to be discussed today may not seem appealing, it is of vital importance, especially if you find yourself at the junction of separation. Admittedly, when grinding through the emotional rollercoaster of separation, succession planning or executing a new will may not be at the forefront of your mind – but it should be.

Why You Should Make A New Will If You're Separated


The Need for a Will in the Time of Separation

If you’re married and separated, it’s crucial to remember that your spouse still has the greatest claim on your will by law. Not only in the case of a formally executed will, but also under the laws of intestacy, which apply if you do not have a will at all. In this scenario, your spouse might inherit everything unless it’s a blended family.

Therefore, if you’ve separated, regardless of whether you’ve been through financial settlements or not, it’s essential to execute a new will. Even after you’ve done your financial settlement, it doesn’t necessarily nullify your previous will that may have been leaving everything to your spouse. The need for a new will becomes even more pressing as separation does not invalidate wills, unlike divorce.


The Impact of Divorce on Wills

Divorce does have a substantial impact on wills. Once a divorce is finalized, it essentially treats the person you’ve divorced as if they have passed away. Therefore, if you prepared a will during your marriage, leaving everything to your spouse and then to your children in case of something happening to both of you, the situation changes post-divorce. In this scenario, your spouse’s claim is no longer valid, and your assets go directly to your children.

But remember, divorce, not separation triggers this change. Hence, it’s vital to think about creating a new will if you’re separated. This advice holds true for the numerous individuals who are separated but not divorced. Not only do wills matter, but so do power-of-attorney provisions, given that your separated spouse maintains their next of kin status, conferring them with certain rights over you if you lose the capacity to make decisions.


Simplify Your Succession

Do consider making a new will if you’ve separated, not just for your betterment but also for your immediate family, and more importantly, your children. It aids in simplifying processes and avoiding legal complexities that can bring about additional stress to your loved ones. You might devise a simple will if you’re still acquiring clarity about your future. Think of it as an emergency measure to protect your interests and those of the people you care for the most.


Every personal situation is different, and it’s important to get tailored advice to your circumstances. So, don’t hesitate to contact our team at TBA Law today, to secure your legal rights and give you the peace of mind needed to move forward.
Call 1300 043 103 or send an email to admin@tbalaw.com.au to book an appointment.


family law online assistant