Separating from your partner will not change the contents of your will unless there is a separation order under the Family Proceedings Act, or an order dissolving your marriage from the Court.
On the dissolution of your marriage, your will remains in force, but will be interpreted as if your former spouse had predeceased you. This means that they will not be able to act as your executor or trustee, should they have been appointed, and that any gifts made to them will fail and be unenforceable. Although there might be some security in this, a marriage cannot be dissolved until after two years of separation. If your will has not been updated upon your separation, your former spouse may still be able to benefit from your estate. We would advise against waiting for a dissolution instead of revoking the will entirely, as navigating a distribution in these circumstances is a complicated process and can be very costly for the Estate.
For de facto relationships, there is not the added security of the dissolution, so without your will being updated, your ex-partner could benefit from your estate and be the one to administer the assets. The easiest way to ensure an ex-partner is not to receive any benefit under your will is to update your will as soon as you separate to ensure your wishes are reflected, and the previous will which includes your ex-partner is revoked.
In both situations, whether your relationship which has ended is a de facto relationship or a marriage, if you have children, updating your will ensures that you will be able to provide all that you wish for your children, and the distribution of your assets to them will not be contested or reduced by any previous partner benefitting from your estate, or claiming that they have an interest.
It is important to note that in cases where partners own assets as joint tenants (as opposed to tenants in common), the laws of survivorship will take precedence over any beneficial interest provided for in a will. This is especially common with houses. When a spouse or partner dies and there is property owned as joint tenants, the survivor will automatically inherit the deceased’s interest through “survivorship”, and the asset or assets will not form part of the estate.
If you have separated from your partner and have not updated your will, please come see us to discuss your proposed division, your assets and liabilities, and how we can best protect you and your estate.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose. We do not give financial, taxation or investment advice and nothing in this article is intended as such.