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What happens to your Will after you separate?

Once you've made the decision to separate from your partner, you may wonder what happens with your Will. The type of relationship you were in will determine the effect it has on your existing Will. It is important to understand a marriage or de facto separation will not automatically revoke your existing Will. The Will continues to be valid.

When you've decided to separate from your partner, there are factors to consider regarding your Will. The type of relationship you were in will determine the effect it has on your existing Will.

It is important to understand a marriage or de facto separation will not automatically revoke your existing Will. The Will continues to be valid.

 

MARRIED COUPLES

If you’re a married couple who separate, your existing Wills will only be rendered invalid once the court grants your divorce. This means up until the point of divorce, the terms of your existing Will continue to apply, and your spouse has a right to make a claim against your estate including your Superannuation benefits. It is considered you’re still “married” by virtue of the fact.

To make an application for divorce, you must be separated for a minimum of twelve (12) months from your spouse. There is no legal requirement which states you must wait until your divorce is finalised to make a new Will. You can make a new Will at any time.

DE FACTO COUPLES

If you’re a de facto couple who separate, your existing Wills will continue to remain valid indefinitely until it is revoked and a new Will is prepared. There are no legal requirements to finalise the end of your de facto relationship.

Your relationship is considered terminated immediately upon separation. It is important to note that this termination will not automatically revoke your existing Wills. Your partner can make a claim against your estate including your Superannuation benefits. A new Will is the best way to prevent such a claim. 

Your Will is one of the most important documents you will ever need to sign. It allows your wishes to be executed if you pass away. With an out of date Will or no Will, your surviving spouse may inherit from your estate even if you are separated. It is recommended upon separation for all relationship breakdowns, couples review their existing Wills and make any amendments or consider making a new one. 

Please contact our friendly team at Omnia Legal for all your Will enquiries by phoning 5413 9238 or emailing info@omnialegal.com.au. We are happy to review your individual circumstance and provide you with personal legal advice to assist with any existing Will amendments or new Will preparations.

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