Effect of separation on a Will
Married spouses - where there is a Will
If you are in a married relationship and have a valid Will leaving some or all of your estate to your spouse, then even if you are separated at the time of your death, the contents of your Will would still be valid and your spouse would receive their entitlement pursuant to the Will.
If your spouse has commenced proceedings in the Federal Circuit and Family Court of Australia before your death then they may also be entitled to more than what your Will provides as they will be entitled to a property settlement based on family law principles and that settlement may be greater than what they are entitled to under your Will.
De facto spouses - where there is a Will
If you are in a de facto relationship and have a valid Will leaving some or all of your estate to your de facto partner, then even if you are separated at the time of your death, then the contents of your Will would still be valid and your de facto partner would receive their entitlement pursuant to the Will.
Where there is no Will
The situation is different where there is no Will and the laws of intestacy will apply to determine whether or not a spouse (married or de facto) has an entitlement to any part of their partner’s estate.
Effect of divorce on a will
If you have been in a marriage and subsequently obtain a divorce but do not change your Will to ensure your former spouse no longer receives any part of your estate, then the clauses in your Will that refer to your former spouse such as their appointment as Executor or distribution of assets to them, will be invalid.
If you have been in a marriage and had a property settlement with your former spouse but have not taken the further step of obtaining a divorce and do not change your Will to ensure your former spouse no longer receives any part of your estate, then the provisions in your Will which provide for your former spouse will still be valid.
No matter whether you are exiting a married or de facto relationship, it is therefore critical that you consult with your family lawyer at the time of your separation with regard to appropriate changes that should be made to your Will at that time to ensure that your wishes are fulfilled.
