Johnston Withers

How divorce can impact your Estate.

Published on Friday 20 April, 2018

Many people don’t stop to think about the effect marriage, registration of a defacto relationship, divorce or deregistration of a defacto relationship will have on their will.

With the rise of defacto partnerships and the option to register that relationship with Births, Deaths and Marriages and with the legal recognition of gay marriage, many people are left without a will and don’t even know!

How divorce impact your estate johnston withers lawyers

Effect of marriage or the registration of a defacto relationship

Section 20 of the Wills Act 1936 states that marriage (including same sex marriage as of late 2017) or the registration of a defacto relationship revokes your will.

There is a way around this, by inserting a carefully worded clause in your will to prevent to operation of this section, by expressing that your will is made in contemplation of marriage or registration of your relationship.

Until late last year, same sex marriage was not possible so many couples don’t have any protection in their will to stop the automatic revocation of their will on marriage.

Similarly, registration of defacto relationships is growing since the Relationships Register Act 2016 came into effect.

Effect of divorce or deregistration of a defacto relationship

Section 20A of the Wills Act has the effect of removing your former spouse from your will.

This section essentially provides that any appointment of your former spouse as your executor and any benefit you have left to them is revoked, and the will treats your wishes as if they had died before you.

Unlike section 20 of the Act, the whole will isn’t revoked. Instead, reference to your partner is revoked and the rest of your will remains in place.

Things to consider

It is always important to review your will every 5 years but it is particularly important to review your will when you enter into or end a relationship.

You should also review what arrangements you have in place for the payment of superannuation upon your death in conjunction with you updating your will.

To find out more, please contact our Will and Estates specialists.

Written by Emma Wilkinson, April 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

As a firm we pride ourselves on our progressive, personal and professional approach to all areas of law.

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