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What you should know about the effect of marriage and divorce on your Will

5 September 2013

What happens to a Will upon Marriage

Unless your will specifically says it was made in contemplation of marriage, when you do marry your existing will is automatically revoked.

If your will is revoked and you fail to make a new one after marriage, all your assets are then subject to the laws of intestacy which outline how assets are distributed in the event you don’t have a will.

Under the laws of intestacy, if you die:

1. leaving a spouse, but no children, the spouse is entitled to all of your estate;

2. leaving a spouse and children, and all the children are also children of your spouse, your spouse is entitled to all of your estate;

3. leaving a spouse and any children who are not also children of your spouse, your spouse is entitled to:

(a) your personal effects, and

(b) a statutory legacy, and

(c) one-half of the remainder (if any) of your estate (and your children will be entitled to the other half of the remainder of your estate).

Depending on your family situation and the property you own, this may not be an outcome you are happy with.

What happens to a Will upon Divorce

If you get divorced, any gift to a former spouse is revoked, along with any appointment as executor or trustee. Divorce does not revoke the whole of your will.

Sometimes when marriages break down, couples do not always formally divorce. A potential problem in this situation is that if you have separated but not divorced, and don’t have a current will, the intestacy laws still recognize your former spouse as being your spouse and your estate (depending on whether you have children) will go to your former spouse.

It is therefore very important to regularly review and if necessary update your will, particularly if you marry or if your marriage has broken down.

This article is general information only and should not be relied on without obtaining further specific information. 
 
Author: Amanda Tully

Amanda Tully Business Lawyer / Director

Amanda Tully is a business lawyer whom acts for clients on a wide range of business succession and other commercial matters. Amanda’s experi.. Learn more about Amanda Tully

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