Property Settlements

Does Marriage and Divorce affect my Will?

Tindall Gask Bentley's Wills and Estates team outline the legal impact that relationship changes can have on your Will.

Tindall Gask Bentley’s Wills and Estates team outline the legal impact that relationship changes can have on your Will.

Wedding season is upon us and amongst the excitement of wedding planning, reviewing and updating one’s Will is commonly over looked. Yet it may be unexpected to learn that upon marriage, your Will is automatically revoked unless expressly stated otherwise. If left unattended legislation, rather than your wishes, will dictate the distribution of your estate. This is known as intestacy.

Legislation dictates that where a person dies intestate the first $100,000.00 of the estate and all chattels, including motor vehicles, will pass to the spouse. The first half of any remaining balance will also fall to the spouse with the second half to be divided equally between ones children. Problems arise where children feel they are not sufficiently provided for and require legal assistance to claim any further entitlement.

In times where de facto relationships are becoming more common it is equally important to give consideration to the effect the relationship will have on your Will. As you and your partner contract equitable interests in each other’s property, these assets will need to be accounted for in your Will.

In South Australia, termination of marriage will revoke only the parts of your Will which provide for your former spouse. This will leave the rest of your Will valid and your substitute beneficiaries will inherit the estate. This could include your children or other family members and may include your former spouse’s family members.  However it should be noted, the period of separation which occurs prior to divorce or separation from a de facto spouse does not have an effect on your Will. During property settlement proceedings your ex-spouse will retain entitlement to your estate over your children or relatives.

The updating of your Will as soon as possible after separation shall give you peace of mind that your estate will not be left vulnerable to distribution that does not cohere with your wishes. Furthermore, it will save your loved ones the hardship and expense of engaging legal assistance in order to claim their entitlements. At Tindall Gask Bentley Lawyers we have experienced Wills and Estates lawyers who will work with you to ensure your wishes will be adhered to.

For further information or any legal assistance contact you nearest TGB office

On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.