It is never an easy situation to deal with a formal separation between a married or de facto couple.

The emotional strain of separation and divorce on both the couple and the extended family can lead to a situation of mental exhaustion. During this time of stress and turmoil, important matters are often overlooked. For those of you who've been working through a property settlement, many will be so relieved when the legal aspect of their relationship has come to an end, the last thing you feel like dealing with is more paperwork and legality. Don't fall into a trap of thinking you just need a break from it all before taking the next steps to tie up the loose ends. 

 

Separated but not divorced?

When you separate from your partner but are not yet divorced, your domestic status does not affect your Will. So, if you no longer wish to leave your assets and belongings to your ex then one of the most important things you should do after separating is to change your Will and, if applicable, revoke the Power of Attorney that you may have put in place as your former partner. This is particularly relevant if you have already done reciprocal Wills and Powers of Attorney.

If you don't, and you pass away before you change your Will, and your ex-partner was named as a beneficiary of your estate, he or she will still be the beneficiary of those assets. If they were named as the Executor, they would retain this role.

You can be separated for several years without being divorced. You may have agreed to a property settlement and for whatever reason decided to not to get divorced. Perhaps you have not been separated for the required one year time period in order to get divorced but if you die before you are divorced, then they might inherit your entire estate by virtue of the fact that they are still “married” to you (subject to the rights of any children). This can also apply to Superannuation beneficiaries.

If you have only recently separated and wish to change your will, you will need to ensure that you expressly indicate in the Will your intention for it to continue to stand after your divorce. You should seek professional advice to ensure that your wishes in your new Will are upheld after you are divorced. Alternatively, you could write a simple Will to cover the period you are separated and another Will once you are divorced.

 

Don't have a Will yet?

Your ex may be entitled to your estate even where there are no Wills in place. Under the laws of intestacy, the surviving ‘spouse’ is the person who inherits the estate, even though you are legally separated at the time of the death and there was obviously no intention from the surviving spouse to make any provision for their ex-partner. This also applies to de facto couples. Children also have a claim on the estate and share with the spouse. Most people would be mortified if their now ex-spouse or partner inherited even part of their estate!

Until the divorce is finalised and the Divorce Order received, your former partner still has a right to claim against your estate. The best example of this is where a spouse dies before the divorce is finalised without a Will and the entire estate passes to their now ex-husband or wife. This can occur even though the divorce has been filed but the final Divorce Order has not yet been received from the courts).

 

Power of Attorney

Typically, a divorce renders a Power of Attorney in favour of the ex-partner invalid but this may vary from state to state, In New South Wales a divorce does not render a Power of Attorney invalid but does render an Enduring Guardian invalid. It is important to ensure that any Power of Attorney or Enduring Power of Attorney you have given to your now ex-spouse is formally revoked and you should seek professional assistance to ensure that your wishes will be carried out according to your intention.

As a general rule of good practice, you should always review your estate planning after any significant change in your family circumstances. This includes reviewing again in the future should you decide to re-partner.

 

Published by: Divorce Resource

The information in this article is general in nature and should not be considered as professional advice. You should seek the advice of a registered professional who will be able to appropriately assess your specific circumstances before offering their expert opinion.

 

You may also be interested in reading:

Future assets of your former spouse: what are you entitled to?

Helping your business survive through death and divorce

Will Power! Is the ex-wife entitled to the estate?

Thinking about your will? Wondering whether you are obliged to provide for an estranged child?

Why the Benefits of Divorce Mediation Are More Than Just Financial