Marriage and separation and divorce - how do they affect your Will? 

17 February 2020
Article from January edition of INPractice

Marriage

Congratulations on your marriage, but did you know your Will is now invalid? 

“Under South Australian legislation, marriage automatically revokes any Will previously made (subject to some exceptions),” Ms Washington says.

“Only those Wills expressly made “in contemplation of marriage” are not revoked. In practicality, this means your Will must include a specific “in contemplation of marriage” clause which states your intention for the Will not to be revoked on marriage. 

Separation

“Separation has no effect on the validity of your Will. Nonetheless, on separating, if you fail to update your Will and you pass away before your divorce is finalised, your spouse may inherit that part of the estate left to them.”

“Also, if you do not update your Will, your spouse may still be your Executor.”

Divorce

In the absence of any intention to the contrary in your Will, a divorce will revoke certain aspects of your Will, Ms Washington says. “For example, any beneficial interest to your former spouse is revoked.

Similarly, the appointment of your spouse as Executor is also revoked.”

Intestacy (if you pass away without a Will)

“If you don’t have a valid Will when you pass away, your assets (or estate) will likely be subject to the intestacy laws of the State.”

In South Australia, Ms Washington says, the Administration and Probate Act 1919 sets out the statutory order of distribution. “For example, if you die leaving a spouse/domestic partner and children, your spouse/domestic partner is entitled to $100,000 of the estate in addition to half of the balance. The remaining half of the balance is divided equally between your children. For estates valued at less than $100,000, your spouse/domestic partner is entitled to the whole estate. 

“Intestacy can be problematic where a significant asset such as a house is registered solely in the name of the deceased and a spouse/domestic partner and children survive them. The spouse/domestic partner has the right to live in the house for three months (on letters of administration being granted) and thereafter can purchase the children’s share.”

“Significant changes to any relationship, such as marriage, separation or divorce, can have consequences on your Will.”

Ms Washington recommends reviewing your Will every one-to-two years for currency.

“If there has been a major change or event in your life, obtaining estate advice helps to ensure the benefit of your assets passes to your intended recipients.” 

*The content of this article provides general information only and is not a substitute for legal advice. 

As ANMF (SA Branch)’s in-house law firm, Union Legal SA offers a range of legal services, including Wills and Probate planning, at heavily reduced prices for members.