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There are a variety of ways that separation affects a will. In fact, it is worth understanding how getting married and getting divorced can also impact a will. It is important that your Will accurately reflects any changes to your relationship status, such as starting a new de facto relationship, getting divorced, separating from your de facto partner or tying the knot.

How getting married affects a will

It is largely unknown that by getting married you actually nullify your Will. By failing to amend your Will so that it accounts for this new relationship, you place a larger portion of your estate at risk of being given to your new partner in the event of separation. If you are getting married for the first time, this may not affect you, but if you have other people you wish to provide for, such as children of a previous relationship, you should speak with a lawyer that has experience in drafting and reviewing wills.

Are there any exceptions?

There is one exception to this rule that marriage nullifies a will – if your lawyer has drafted the Will so that it states ‘in contemplation of marriage’. This is the only time when you will not have to get a new will drafted once you’re married.

Does getting divorced affect the Will?

Getting a divorce from your partner can have an impact on your Will, so once you have separated, make sure you speak with a family lawyer about updating your Will. It’s also worth remembering that marriage separation has no direct impact on the Will, which is why it is so important to speak with a family lawyer about updating the Will during the interim in between separation and divorce so that it accurately reflects these circumstantial changes.

Is my Will impacted by my De Facto relationship?

A de facto relationship will not have the same effect on your Will as a marriage. This is not to say that de facto relationship cannot result in property rights being shared. When this happens, there may be some conflict between the merging of these property rights and the terms set out in your Will.

In most cases, if one partner to a de facto relationship dies without having a family lawyer redraft his or her Will so that it reflects the relationship status, the remaining partner inherits the dead partner’s property. 

Preparing a new will

Preparation of a will does not necessarily have to be an expensive and onerous process. By organising your Will, you ensure that your assets and property are managed in an efficient and orderly fashion in accordance with your wishes.

Once you have seen a lawyer about making a will, you need to make sure you are regularly updating it, or having it reviewed by your lawyer. These reviews usually occur following life-altering events, such as deaths, births and marriages, and when you acquire or sell any new assets. While it is unlikely you will have to make amendments, it is always worth having a family lawyer check the status of the Will.

LegalVision cannot provide legal assistance with this topic. We recommend you contact your local law society.


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