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CHANGING YOUR WILL AND POA AFTER SEPARATION
Wed, 16 May 2018
Separation is a tumultuous time for all involved, usually requiring parties to navigate logistical issues such as living arrangements, finances and working together to provide a stable environment for any children and pets, and at the same time as continuing to work and attempt to process emotions, feelings and to grieve for the loss of the relationship.
Under Queensland law, your spouse is entitled to make a claim against your estate right up until a Certificate of Divorce is issued, therefore it is crucial that you update your existing Will or create a new Will if your wishes have changed as a result of the separation.
Whilst updating your Will and power of attorney is probably the last thing on your mind in the midst of a separation, it is one of the most important things that needs to be undertaken, and should generally be done at the earliest possible time, especially if you have a reciprocal Will with your ex spouse. Affinity Lawyers have a team of experienced and professional lawyers who are well placed to provide you with comprehensive estate planning advice, and who can guide you through the emotional and turbulent time post separation.
If you have an existing Will
Any Will made during the course of your relationship may not necessarily be an accurate reflection of how you wish your estate to be distributed after your passing once you have separated from your spouse.
If provisions were made under your will for your spouse, then even if you have separated, your spouse will continue to be entitled to the benefit of those provisions upon your passing.
For example, if you and your ex spouse made Wills during your relationship leaving the entirety of your estate to one another, then this means that your ex spouse will still be entitled to the entirety of your estate upon your passing, regardless of whether you had been separated, or how long you had been separated at the time of your death.
While the finalisation of a divorce between yourself and your ex spouse can automatically revoke any dispositions to your ex spouse and any appointment of your ex spouse as an executor, trustee/advisory trustee or guardian under the Will in Queensland, there are several areas which are not automatically revoked which could adversely impact your estate.
Also, the significant time delay between the date of separation and when you are able to obtain a divorce (the parties must have been separated for a minimum of twelve months before an application for divorce can be filed) means that for at least the year after separation (and possibly many more years if you do not file an application for divorce) your ex spouse will still be entitled to benefit from your estate, regardless of your separation.
If you do not update your Will after separation and prior to your divorce, you run the risk of your ex spouse being entitled to a substantial portion or the entirety of your estate (whatever their entitlement is in your Will) regardless of whether they have already received a substantial amount of property and assets in a property settlement after separation. This is because the division of property and assets between separating parties can be undertaken without the need for a divorce (and generally happens shortly after separation due to the need to finalise living arrangements and division of funds in order for parties to move forward with separate lives)
Another issue which can arise is where the divorce is being processed, however is not ‘absolute’ at the time of your passing, and therefore does not operate to revoke the relevant provisions in your Will.
It is prudent to have a new Will prepared as soon as possible after separation to ensure that your estate is administered in accordance with your wishes. We would recommend contacting one of our Gold Coast Lawyers at Affinity Lawyers today on 5563 8970 to arrange an initial consultation to discuss your individual requirements.
If you don’t have a Will
If you don’t have a Will, then you need to get one.
There are strict legislative requirements in Queensland for how your estate must be distributed if you were to die intestate (without a Will), and as you will see from the statutory imposed beneficiary hierarchy below, it is highly likely that a large portion of your estate will go to your ex spouse, regardless of your wishes or intentions.
For example, if you were to pass away intestate in Queensland, and you have no children, then your ex spouse will be entitled to the whole of your estate.
If you have one child, your ex spouse would still be entitled to $150,000.00, all of your household chattels and ½ of the residual estate, leaving the other half to your child. If there is more than one child, then those children will share 2/3 of the estate and your ex spouse would be entitled to $150,000, all of your chattels plus the remaining 1/3 of the residual estate.
To put this into perspective, if you were married (even if you were separated from your spouse at the time of your passing) had two children and your estate consisted of $500,000, then if you passed away intestate in Queensland, your estate may be distributed as follows:
- $266,666 and all household chattels to your ex spouse;
- $116,666 to Child A;
- $116,666 to Child B.
If you have been separated from your ex spouse for many years and had no intention for them to benefit from your estate, this may not be an ideal outcome.
Therefore, it is vitally important that you have a valid and current Will in place to ensure that your estate is distributed according to your wishes. Again, we strongly recommend contacting one of our Gold Coast Lawyers at Affinity Lawyers today on 5563 8970 to arrange an initial consultation to discuss your individual requirements.
If your spouse is listed as a beneficiary under your superannuation entitlements, or you have completed a binding death benefit nomination in favour of your spouse, these should be changed immediately if you do not wish these benefits to go to your spouse upon your passing.
As above, if your spouse is listed as a beneficiary under any of our insurance policies, this should be changed immediately if you do not wish any payments to go to your spouse upon your passing.
It is also prudent to review the beneficiaries under your superannuation policy and any life insurance policies, as well as to change your binding death benefit nomination if it was made in favour of your ex-spouse if you do not wish for them to receive any payments upon your passing.« Back to Articles
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