Separation and Estate Planning

July 19, 2022

When you separate from your spouse there is a lot to manage, and separation inevitably brings about a lot of change.

One area that is often overlooked on separation is updating your Will, Power of Attorney and Enduring Guardian documents.

How does separation affect my Will if I am Married?

In NSW separating from your de facto partner will not change your Will and any gift in your Will to your ex-de facto could still be valid, despite the fact that you have separated and divided up your assets.

If you have separated from your De Facto consult with our Estate Planning team about updating your Will, Power of Attorney and Enduring Guardianship.

How does separation affect my Estate if I do not have a Will and I am separated from my Husband or Wife or De Facto partner?

Under the laws of intestacy, the surviving former ‘spouse’ (whether married or De Facto) is will inherit the Estate if the deceased had no children. Where there are children, the spouse will inherit a prescribed amount, and then share the residue of the estate with any children.

This applies even if you were legally separated at the time of death and there was no intention from the surviving former spouse to make any provision for their former partner.

To avoid this happening, there are steps you can take to protect yourself. Making a will is one.

What other estate planning matters do I need to consider?

A separation or divorce should not be the only time you consider updating your will.

Any time there is a change in your family circumstances, you should be reviewing and updating your will.

Contact us about your Will and estate planning.

If you’ve recently separated and need to make changes to your Will our Estate Planning team can help. Seeking legal advice early is the best way to protect yourself, your family, and your estate.