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 documents. Our goal is to make this process as simple as possible in order to ensure that your estate plan reflects your wishes 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 health decisions on your behalf, under an existing EPOA, should you lose capacity.
For those without a will, legislation dictates the distribution of assets, which are known as the rules of intestacy. For those who have separated from their spouse, but not divorced, these rules may still entitle your spouse to a share of your estate.
In the case of divorce, your will and enduring power of attorney may be automatically revoked, potentially leaving your estate plan 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. Failure to update your will after separating from a de facto spouse could result in legal disputes within your family over the estate.
The Family Home
Most couples will own their family home as joint tenants. If you pass away and hold property as “joint tenants” with your ex-spouse, your interest in the family home will automatically pass to your spouse and will not form part of your estate. In this circumstance it can be important to legally severe the joint tenancy to protect your 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 which you wish to pass to your children while they are minors. This person may not be your ex-spouse. Updating your will ensures that you retain authority over this appointment.
With respect to your superannuation, existing nominations may leave your ex-spouse as the beneficiary of your superannuation death benefits, and this may remain in effect where your divorce is not finalised. It is important that these documents are updated in accordance with your 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-spouse might have – for example, to remove directors, change a trustee, or take sole control of these entities after your passing.
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