Major life changes often require more than emotional and financial adjustments. They can also affect your legal affairs in ways that are not immediately obvious.
In Victoria, separation, divorce and remarriage can each have different consequences for your Will and broader estate planning. Reviewing your arrangements at the right time can help ensure they still reflect your wishes and reduce the risk of uncertainty or dispute.
Many people assume that once they have made a Will, their estate planning is complete. However, in practice, family circumstances can change significantly over time. Failing to review your estate planning documents after a relationship breakdown or a new marriage may result in outcomes that no longer reflect your wishes or adequately protect your loved ones.
Why Should Estate Planning Be Reviewed After Separation?
Separation is often the beginning of a series of important legal and financial decisions. While property settlement and parenting arrangements may become the immediate priority, reviewing your Will and estate planning documents is also important.
In Victoria, separation does not automatically alter your Will. If you are separated but remain legally married, provisions benefiting your spouse, including an appointment as executor or a gift under the Will, may continue to operate.
For example, your existing Will may still:
- Appoint your former partner as executor or trustee of your estate;
- Leave some or all of your estate to your former partner; or
- Appoint your former partner as trustee of a testamentary trust.
If you have children under 18, your Will can record your wishes concerning who should care for them if no parent is able to do so. However, this does not necessarily displace the rights of a surviving parent or prevent a court from making decisions according to the child’s best interests.
If these appointments no longer reflect your wishes, they should be reviewed and updated as soon as practicable.
You should also review any enduring power of attorney, appointment of a medical treatment decision maker and advance care directive. In Victoria, an enduring power of attorney can authorise another person to make decisions about financial and personal matters, but it does not itself authorise medical treatment decisions.
Separation does not necessarily bring these appointments to an end. If your former partner has been appointed to make decisions for you and that no longer reflects your wishes, the appointment may need to be formally revoked and replaced while you have the required decision-making capacity.
Does Divorce Automatically Change Your Will?
A common misconception is that divorce automatically cancels an existing Will. In Victoria, divorce does not generally revoke the entire Will.
Under the Wills Act 1997 (Vic), when a divorce or annulment takes effect, it generally revokes:
- A gift or other disposition to the former spouse;
- The grant of a power of appointment exercisable by, or in favour of, the former spouse; and
- An appointment of the former spouse as executor, trustee, advisory trustee or guardian.
There are exceptions, including some appointments concerning property held on trust for children of the former spouses. The wording of the Will and the surrounding circumstances can therefore be important.
It is also important to distinguish divorce from separation. The relevant changes generally arise only when the divorce order takes effect, not when the parties first separate or begin divorce proceedings.
For that reason, a divorced person should not assume that their entire Will has fallen away or that the remaining provisions still work sensibly. A Will may continue to operate in part, but in a way that no longer reflects the person’s present intentions or family circumstances.
A comprehensive review helps ensure your estate planning documents continue to reflect your current circumstances and intentions, namely who you want to:
- Who you want to receive your estate;
- Who you want to act as executor;
- Who you want to act as trustee of any testamentary trust;
- How provision should be made for your children or other dependants; and
- What should happen if a beneficiary dies before you.
Why Remarriage Can Have Significant Consequences?
Entering a new marriage is another important life event that should prompt a review of your estate planning.
In Victoria, marriage generally revokes a Will made before the marriage. An important exception may apply where the Will was made in contemplation of that particular marriage. Certain provisions benefiting or appointing the person whom the Will-maker later marries may also be preserved, depending on the terms of the Will and the applicable legislation.
If this occurs and a new Will has not been prepared, your estate may instead be distributed under the applicable intestacy laws.
This outcome may not reflect your wishes, particularly if you have:
- Children from a previous relationship;
- A blended family;
- A financially dependent family member;
- Significant personal, business, or trust-related assets;
- Existing testamentary trusts; or
- Particular assets or family heirlooms that you want specific people to receive.
Preparing a Will in contemplation of marriage, or making a new Will promptly after marriage, can help avoid uncertainty and ensure your estate plan reflects your current wishes.
Blended Families Often Require Careful Planning
Second relationships often create more complex family and financial structures.
You may wish to provide for:
- Your current spouse;
- Children from a previous relationship;
- Children of your current relationship;
- Stepchildren;
- Other financial dependants; and
- Other family members or people who are important to you.
These interests do not always align. Balancing these interests requires careful planning. Without clear instructions, disputes may arise after your death, particularly where family members have different expectations.
For example, leaving an estate outright to a surviving spouse may give that person complete control over how the assets are ultimately distributed. Conversely, leaving insufficient provision for a spouse or another eligible person may increase the risk of an estate claim.
A carefully prepared estate plan may balance competing needs by using:
- Testamentary trusts;
- Rights of residence;
- Life interests;
- Specific gifts; or
- Other arrangements.
The appropriate structure will depend on the family’s circumstances, the nature of the assets and the Will-maker’s objectives.
Thoughtful estate planning can help minimise uncertainty and reduce the likelihood of future disputes.
Estate Planning Involves More than Your Will
A comprehensive estate planning review extends well beyond updating your Will.
Depending on your circumstances, it may also be appropriate to review documents such as:
- Enduring Powers of Attorney;
- Appointments of Medical Treatment Decision Makers;
- Superannuation death benefit nominations;
- Life insurance beneficiary nominations;
- Trust structures arrangements (family and discretionary);
- Business succession arrangements.
These arrangements do not all operate in the same way. Some assets may pass outside the estate and may therefore not be controlled directly by the Will.
Superannuation is an important example. Depending on the fund rules and the type and validity of any nomination, a superannuation death benefit may be paid to an eligible dependant or to the deceased’s legal personal representative. If there is no binding nomination, the fund trustee may have discretion about who receives the benefit.
For this reason, changing a Will alone may not be enough to achieve the intended outcome.
When Should You Review Your Estate Plan?
A review is recommended whenever a significant life event occurs.
Common review triggers include:
- Separation;
- Divorce;
- Marriage or Remarriage;
- Entering or ending a de facto relationship;
- The birth or adoption of a child;
- The death or incapacity of an executor, attorney or beneficiary;
- Significant changes to your financial circumstances;
- Receiving an inheritance;
- Purchasing or selling substantial assets;
- Establishing or changing a trust or company structure; and
- Moving interstate or overseas.
While these events do not always change your legal documents automatically, they are important occasions to review your estate plan to ensure it continues to reflect your wishes.
Even if no major life event has occurred, it is sensible to review your estate plan periodically. A review can confirm that:
1. Your documents remain valid;
2. The people you have appointed are still appropriate; and
3. The plan continues to reflect your current circumstances.
How Family Law and Estate Planning Intersect?
Family law and estate planning are often closely connected.
Following separation or divorce, matters such as property settlements, financial agreements, child support obligations and ongoing financial responsibilities may all influence how your estate should be structured.
Obtaining family law advice alongside estate planning advice can help ensure these legal arrangements work together effectively and reduce the risk of future disputes.
Every family situation is different, particularly where there are blended families, complex asset structures or continuing financial obligations.
Protecting Your Family’s Future
Reviewing your estate planning after a significant life event is more than a formality — it is an important step in ensuring your legal documents continue to reflect your wishes.
Whether you have separated, divorced or remarried, updating your Will and related estate planning documents can provide greater certainty for your loved ones and help minimise the risk of future disputes.
How Tonkin Law Can Help?
At Tonkin Law, we understand that major life events often require careful legal planning.
Our experienced team can assist you to:
- Review or update your Will;
- Prepare or revise powers of attorney and other future decision-making documents;
- Consider the estate planning implications of a property settlement or financial agreement;
- Plan for children, dependants and blended-family circumstances; and
- Identify gaps or inconsistencies across your broader estate plan.
We take the time to understand your family, financial circumstances and objectives. We then provide practical advice designed to ensure your estate plan reflects your wishes and protects the people who matter most.
If you have recently separated, divorced or remarried, or are contemplating separation, contact Tonkin Law to arrange a review of your Will and estate planning arrangements. Give us a call on 9435 9044 or send us an email at reception@tonkinlaw.com.