Separation and Divorce – How these affect your Will?


Separation and Divorce

An area that is often overlooked in our life is estate planning.  Many people think “I will get to it later” and then before you know it later has been and gone and so have you.  People will organise their home and contents insurance, insurance for their car, life insurance and their superannuation, but seem to forget about one simple and very important matter – your Will.

Careful estate planning and Will drafting means your estate will be managed exactly how you would like.  You have worked hard all your life to secure those assets and financial resources, don’t let the absence of making a valid Will be the reason all that hard work comes undone or someone else gets to decide how your assets are distributed.

When a person dies without leaving a Will, you are said to have died intestate.  When this occurs, your estate is managed according to the intestacy laws of that state.  In Queensland, the Succession Act 1981(Qld) Part 3 deals with this issue.  However, having a valid Will means your estate will be distributed according to your wishes.

One very important consideration that is overlooked, is updating your Will after the breakdown of a marriage has occurred.  While a divorce mostly has the effect of revoking any provisions in favour of your former spouse, if you have separated but not yet divorced this can present some problems for your estate if your Will has not been updated.

Separated but not divorced

If you have separated from your spouse but are not legally divorced, your Will remains valid despite your relationship status. If your former spouse is a named executor of your estate, then they will be able to administer your estate as per your Will. If your former spouse has been left any provisions in your Will these will still take effect even if this is not what you intended. This type of oversight can cause your loved ones and family left behind a great deal of anguish and will create unnecessary burden on your estate.


It is important to remember that where you live will determine the impact a divorce has on your Will. In some states and territories, a divorce will render your Will invalid while in others it may not. Following a divorce in Queensland, the Succession Act revokes any disposition to the former spouse, revokes any appointments of the former spouse as executor, trustee, advisory trustee or guardian and any grant of a power of appointment exercisable by, or in favour of the former spouse.

The Succession Act, does not revoke the appointment of the former spouse as trustee of property left by the Will on trust for beneficiaries that include the former spouse’s children or the grant of a power of appointment exercisable by the former spouse only in favour of children of whom both the testator and former spouse are parents of.

It is good practice to revisit your Will every three years or sooner if you experience some significant change in your personal or financial circumstances. At Miller Sockhill Lawyers we can help and provide advice on all areas of estate planning and administration. Call us today for a free 15-minute consultation on 07 5444 4750.