Navigating the complexities of separation can be an emotionally draining experience, involving considerations such as property settlements and parenting arrangements. Amidst these challenges, it is crucial to turn your attention towards reviewing and updating your Will and enduring power of attorney documents. Our goal is to make this process as simple as possible to help ensure that your estate plan reflects your change in intentions after a separation.
Don’t wait until the divorce is finalised!
Contrary to common belief, separation itself does not automatically invalidate your Will or enduring power of attorney (EPOA). Failing to update these legal documents after separation may mean that your ex-partner will:
- Inherit your estate in the event of your demise.
- Manage your financial assets under an EPOA; and
- Be able to make medical and personal decisions on your behalf, under an existing EPOA, should you lose capacity.
For those without a Will, legislation dictates the distribution of assets according to fixed provisions, which are known as the rules of intestacy. For those who have separated (but not divorced) from their spouse, and for those who have recently ended a de facto relationship, these rules may still entitle your ex-partner to a share of your estate.
Divorce
In the case of divorce, your Will and EPOA may be partially or completely revoked, potentially rendering your existing estate planning documents inadequate.
What about when a de-facto relationship ends?
The termination of a de facto relationship can also impact a Will, but determining the precise end of such a relationship can be challenging. The end of a de facto relationship currently has no effect on an EPOA. Failure to update your Will and EPOA after separating from a de facto spouse could result in legal disputes within your family over your estate.
The Family Home
Most couples will own their family home as joint tenants. If you pass away holding the family home as “joint tenants” with your ex-partner, your interest in the family home will automatically pass to your ex-partner and will not form part of your estate. If you hold property with an ex-partner as joint tenants, it is important to consider legally severing the joint tenancy to protect your new estate plan.
Safeguarding your minor children’s inheritance
If you have young children, you will need to consider the best person to manage the assets that you want to pass to your children while they are minors. This person may not be your ex-partner. Updating your Will ensures that you retain authority over this appointment.
Superannuation
With respect to your superannuation, existing nominations may leave your ex-partner as the beneficiary of your superannuation death benefits, and this may remain in effect if your divorce is not finalised when you die. It is important that these documents are updated in accordance with your new estate plan.
Trusts, Companies and Business Structures
In the context of a family trust, and family-run companies or businesses, a thorough review is necessary to understand the powers your ex-partner might have – for example, to remove directors, change a trustee, or take sole control of these entities after your passing, and consider whether changes need to be made.
For more information, or to make an appointment to update your estate plan, call our office on (07) 3188 5124 or find out more about our Estate Planning Services here: Wills & Estates | Donovan Winkler Lawyers
Recent Comments