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How does a divorce effect your Will?

In all cases, a divorce will affect your will, but how it is affected varies from state to state.  

In NSW, a divorce has the effect of revoking any gifts to your ex-spouse and also any clause appointing them as executor or trustee.  Essentially your ex-spouse will be treated as if they had died before you or no longer exist.  If this occurs then there may be unintended consequences for the rest of your will. 

 

It is very important to realise that your will is not altered until you actually divorce.  Divorce may not take place for several years after separation during which time your Will may not express your wishes.  We therefore advise that you give consideration to making a new will shortly after you separate. 

While a divorce does not revoke a Will a marriage will!  Any Will made prior to a marriage will be completely revoked upon the marriage unless it specifically states that it was made in contemplation of that marriage.  It is a good idea to speak to your future spouse about what your intentions upon death might be and consider whether your will provide for this.  Remember though, that Wills can be changed at any time and your spouse has no obligation to tell you what is in their will (with the exception of mutual Wills). 

Generally, any gift to your ex-spouse will no longer be valid.  You should update your will and other estate planning documents at this time if you have not already done so since separation. 

When considering your Will don’t forget to consider a Power of Attorney and Enduring Guardian.  Both of these documents should be considered as essential as your Will as they can provide assistance in cases where you suffer an injury which means you are unable to manage your affairs.  If you do not have a Power of Attorney it can be very difficult for a spouse to manage your affairs if necessary if you have kept them in your sole name. 

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