Will you or won’t you post separation?

by Nicholas Parker, Solicitor

Separation is a highly stressful time in a person’s life and for most people, estate planning is low on their list of priorities in this situation. But what happens in the event that someone passes away after separating from their partner without updating their Will? Is your will up to date?

If you have an existing Will, you should be aware that in the event of separation, this will not revoke that Will. Although in the case of divorce, it’s a different scenario. In Victoria, the Wills Act 1997 provides that a divorce order has the effect of revoking a Will to the extent that it makes provision for a former spouse. The issue with this is that an Application for Divorce can only be made twelve months after the date of separation, with people often waiting even longer than this to apply. It’s therefore worth considering updating your Will following separation to ensure assets are passed to the people you want, rather than your former spouse.

What happens if I die without a Will?

Dying without a Will, or without a valid Will, is known as dying ‘intestate’.

In Victoria, the rules of intestacy are governed by the Administration and Probate Act 1958  (‘The Act’).  The Act provides that the assets of an intestate shall first pass to the deceased’s ‘partner’. For the purposes of the Act, the definition of ‘partner’ includes a ‘spouse’ which is defined by the Act as a party to a marriage. There is no provision in the Act to exclude partners that are separated but not yet divorced and again this could result in a situation where your estate, or the majority of it, will pass to your former spouse.

What about de facto relationships

The Act’s definition of ‘partner’ also encompasses that person’s ‘domestic partner’ which includes registered and unregistered domestic partners. To be in an unregistered domestic partnership, you must have been living together at the time of death as a couple on a genuine domestic basis (irrespective of gender); and had either:

  1. Been living continuously in that manner for a period of at least two years before the death; or
  2. Share a child under the age of 18 with that person.

In short, the estate of someone that dies intestate will not pass to their former domestic partner if at the time of the death they had not been living together or if they had not been living together on a genuine domestic basis.  This can be addressed by ensuring you have an up to date Will in place.

What about my super?

Superannuation entitlements do not automatically form part of your estate upon your death. It is possible to direct your superannuation by way of a Binding Death Benefit Nomination, however, if you have failed to prepare a nomination ­– or you did not update your nomination – it’s possible that your superannuation will be paid to your former partner when you die.

If you have recently separated, it is advisable that you review your binding nomination with your fund and update it if necessary.

Separation can be an extremely challenging experience so it’s understandable that estate planning is low on the list of priorities when this occurs. Despite the competing priorities associated with separation, updating your Will is advisable to ensure your assets are gifted to the people you want.

Is your will up to date?

Nicholas Parker is a Family Law Solicitor at Coote Family Lawyers

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