If you have just married, are having kids or just thinking about it, contemplating separation or recently divorced it’s important to understand what impact these and other significant life events can have on your Will.
Marriage and your Will
When planning a wedding, the food, the grog, and the wedding singer…… few people can say that estate planning is high on their list of priorities. But will marriage affect your Will?
In New South Wales, entering into a legal marriage automatically revokes any existing Will that you may have made. In fact, a recently married person is considered to have died intestate if they were to die soon after getting married if a new Will had not been made. But what does that mean for newlyweds?
Under the intestacy laws of New South Wales, if a married person dies intestate the entire estate automatically goes to the surviving spouse. While that may be an appropriate outcome for some couples, others might wish to leave their assets among multiple beneficiaries. Further, having your entire estate automatically distributed to the surviving spouse is problematic in scenarios where there are children from a previous relationship or other people for whom the Will maker has an obligation to provide. This opens the door to a claim against the estate. Messy, nasty and costly.
A Will can be specifically made with a future marriage in mind. In this case, a will may not automatically be revoked upon marriage to that person. Talk to us about how.
With this in mind, it’s important that if you are newly married you attend to updating your Will as soon as possible after marriage to ensure that in the event of death, your estate will be distributed in accordance with your wishes. It also relieves heartache for your loved ones left behind if something happens.
Separation and your Estate Plan
If you’ve recently separated or are considering separating from your spouse, it’s important to know that only divorce affects your Will, not separation. If you left property or assets to your spouse, your separation would not alter the effect of your will even if you would no longer choose to leave these assets or property to your spouse – a less than desirable outcome for many. Therefore, one of the most important steps you should take after separating is to update your Will. Straight away!
Divorce and your Will
In New South Wales when a divorce is granted by the court it revokes or cancels any gift in a Will to a former spouse. It also cancels your spouse’s appointment as executor, trustee or guardian in the Will, but will not cancel an appointment of a former spouse as trustee of property left on trust for beneficiaries that include children of both you and the former spouse. So again, you really need to change that Will or worse still put one in place if you don’t have it already.
With the above in mind, we feel that following a divorce it is best to make a new Will to ensure that your assets are distributed in accordance with your wishes. Actually, it is more important to do it after separation unless of course, it makes more sense to leave your assets to your ex-partner. Sometimes where there are small children, this will be the preferred course.
In all of the scenarios outlined above it is also important to consider who you have appointed to manage your financial affairs in the event that you cannot. Revising your power of attorney and guardianship arrangements may also be prudent.
Do you know if you own your home with your spouse as Joint Tenants or Tenants in Common? It is worth knowing because if you separate and one of you passes away and the home is owned as Joint Tenants the survivor will automatically inherit the whole property, even after separation.
Other significant life events and your Will
There are other significant life events that can impact your will after your death including:
– The birth of a child or children
– The death of any beneficiary or executor named in your Will
– The sale or disposal of any asset you may have made specific provision for in your Will
We can help
At Capelin Law we always advise that you review your Will any time a significant life event occurs. If you have any questions about significant life events and their impact on your estate plan.
If you’re facing a challenging situation, rest assured that we’re here to offer useful advice & assistance. Our goal is to enable you to make the right choices for yourself & your overall health.
Remember to prioritise your own needs & emotions & seek out any resources or help that can aid in that.