Estate planning lessons from ‘Bennifer 2.0’

With a list of marriages, engagements and kids to their names, the reunion of celebrity couple Jennifer Lopez and Ben Affleck raises some big estate planning issues, says lawyer Olla Kutieleh.

‘Bennifer’ is back on again. While the love lives of celebrities isn’t a typical topic for the TGB blog, there are plenty of legal lessons to be learned from the reunion of superstar couple Jennifer Lopez and Ben Affleck. While gossip lovers have been getting excited by headlines speculating that Ben is looking for an engagement ring for J-Lo, it should be a glittering reminder about the Will and estate planning implications for those entering new relationships after separation or divorce.

This issue isn’t top of the list for TMZ, but it’s important.

Between them, Ben and Jen have five children, four marriages and multiple engagements. This creates a potential estate planning mess, if it is not managed correctly.

While you may not have the same Hollywood life, there are implications for you, too, if you don’t take the right steps to update your Will and estate planning following separation and entering into a new relationship.

Below are some of the key considerations.

Estate planning in South Australia

In South Australia, marriage automatically revokes your Will unless otherwise stated. There is only one instance where a Will still holds its weight — when it has a clause explicitly stipulating that it was made in contemplation of marriage. So, when re-partnering, it is essential to keep in mind that if you should remarry, you should prepare a new Will. If you do not prepare a new Will, when you pass away it will be left to the legal system to determine how your estate is distributed which may not be in accordance with your wishes.

While divorce will not revoke your Will, it will treat any reference to your former spouse as though they had died before you. However, if you have separated, but not yet formally divorced and you should pass away – your former spouse will still benefit from your estate.

For the above reasons, if you have been recently married, divorced or separated, it’s crucial to seek professional advice from an estate planning lawyer to ensure your estate is distributed according to your wishes. If your Will is left unchanged, it may be left to the court to decide how to distribute your estate. This could mean that your assets end up in the hands of the wrong people, and don’t adequately factor in your new partner. At the very least, you will be leaving behind an enormous administrative burden for your loved ones.

Protect the future of your children

It’s important to update your Will after divorce to ensure that your children have full rights and entitlements, and are cared for in the way of your choosing. For example, if you were to remarry and then pass away, it would need to be stipulated that specific personal effects and assets go to them.

There are many considerations. What would happen to your children if your former spouse was to pass on? Who would be your children’s guardians if you and your  former spouse both passed on?

Blended families with different children from different relationships can make these decisions highly complicated.

Again, getting professional advice is key.

Consider the rights of your former spouse

During and after separation, spend time reviewing all of your legal documentation in detail. A lawyer can help you to formally revoke documents that connect you to your former spouse, and prepare new ones. If you have any jointly-owned assets, you may need to consider re-titling them into your own name.

A new Advance Care Directive should be created to remove your former spouse and replace them with your new partner or someone else you trust. This important document gives a trusted person your medical information and allows them to make medical, personal and lifestyle decisions on your behalf if you are incapacitated. Remember, your former spouse remains ‘next of kin’ until the divorce has been officially finalised.

Overhauling your legal documents to safeguard your assets

To protect your assets from your former spouse you’ll need to update the trustees and beneficiaries of your retirement investments, including your superannuation or a self-managed superannuation fund. Furthermore, the death benefits nominations for these accounts must be proactively altered to benefit your new partner, children or estate.

This approach should also be applied to your assets and property. After divorce, update your Power of Attorney. This powerful document often specifies your former spouse as the Power of Attorney, giving them access to assets such as bank accounts or property, so again you’ll need to add your new partner or someone else you trust.

Starting your new life off on the right note

When love is in the air, the last thing you may want to do is get into the nitty gritty of your estate administration. But these important estate planning processes give you true, legislative closure on previous relationships and allow you to step into your new relationship without those personal risks hanging over your heads.

And it’s not just a new marriage. Living with a partner, having a relationship of interdependence or having kids together creates legal issues and obligations.

Get in touch!

If your estate plan is out of date, or you’re not sure if you have the right plan in place, get legal advice as soon as possible. The estate planning team at TGB is experienced with handling even the most complex Wills and estate planning needs.

Get in touch with Olla on +61 8 8205 1265 or via okutieleh@tgb.com.au to discuss anything in this article, or to arrange an appointment.