How Divorce or Separation Affects Your Estate Plan

Separation is a significant life change, but many people don’t realise it can leave their estate plan out of date. It’s very common for estate planning documents to continue reflecting a previous relationship long after circumstances have changed, sometimes with unintended consequences.

Taking the time to understand how separation or divorce affects your estate plan is an important step in ensuring your wishes are carried out as intended.

Does Separation Change Your Will in Victoria?
If you are separated but not yet divorced, your Will generally remains unchanged.

This means your former partner may still be named as a beneficiary (including in relation to your superannuation death benefit) or appointed as your executor. In practical terms, they could still inherit from your estate or be responsible for administering it even if that no longer reflects your wishes.

For many people, this comes as an unexpected and uncomfortable surprise.

What Happens to Your Will After Divorce?
In Victoria, divorce does affect your Will but it does not revoke it entirely.

Under the Wills Act 1997 (Vic), a divorce will generally:

• revoke any gifts made to your former spouse; and 

• remove them from roles such as executor or trustee. 

However, the rest of your Will remains valid.

This can sometimes create gaps or unintended outcomes. For example, if your former spouse was your only executor, there may be no one appointed to administer your estate. Similarly, gifts that were intended to flow through your spouse may no longer operate as planned.

For this reason, relying on divorce alone to “fix” your estate plan can leave important matters unresolved.

Your Estate Plan Includes More Than Your Will
Your Will is only one part of your broader estate plan. After separation or divorce, it’s important to review all related arrangements to ensure they align with your current estate planning goals and objectives.

Superannuation is a commonly overlooked area. Super does not automatically form part of your estate, and any superannuation death benefit nomination may still direct your super to your former partner if it hasn’t been updated.

Life insurance policies should also be reviewed, as they may still list your former partner as the beneficiary.

Enduring Powers of Attorney and Medical Treatment Decision Maker documents should also not be overlooked. If your former partner is still appointed as your attorney under an Enduring Power of Attorney, or as your Medical Treatment Decision Maker, they may continue to have authority to make important financial, personal and medical decisions on your behalf if you are unable to do so. This can result in unintended consequences if these appointments no longer reflect your current wishes.

Considerations If You Have Children
If you have children, reviewing your estate plan becomes especially important following separation.

Your updated plan can:

• set out how your children will be provided for; 

• determine how their inheritance will be managed (particularly if they are under 18); and 

• appoint trusted people to act in their interests. 

While you can express your wishes regarding guardianship in your Will, it is important to note that the Court retains ultimate discretion when deciding what is in a child’s best interests.

Property Settlement Is Not the Same as Estate Planning
It is a common misconception that once a property settlement is finalised, everything is taken care of.

However, these are two separate processes:

• Property settlement deals with how assets are divided at the time of separation; and 

• Estate planning determines what happens to your assets if you pass away. 

Even after a property settlement has been finalised, your existing estate planning documents may still direct assets in a way that no longer reflects your intentions, or they may refer to assets you no longer own. For this reason, it is important to review your estate planning documents once your property settlement has been completed. 

Why Updating Your Estate Plan Matters
If your estate plan isn’t updated after separation or divorce, it may lead to unintended outcomes. A former partner may still benefit, loved ones may face unnecessary stress or disputes, and the administration of your estate can become more complicated than it needs to be.

Updating your estate plan during this time may feel overwhelming, but it is an important step in protecting your wishes and those close to you.

If you would like guidance, we are here to help you navigate these changes and ensure your estate plan reflects your current circumstances with clarity and confidence.