Separation is a challenging time, both personally and legally. With so many things to consider, we often notice our clients overlooking the importance of updating their Will. While this might not seem like an urgent priority compared to other aspects of divorce, it’s an important step to take in order to protect both your family and your assets in the event of your sudden passing.
In this SE Lawyers blog, our Junior Lawyer Bridgette Dempsey is here to answer the biggest questions about what happens to your assets and Will following a relationship breakdown.
Q1. If I separate from my partner, what happens to my Will?
Bridgette: Unlike divorce, separation does not actually impact your Will. Being separated also won’t revoke the appointment of your former partner as Executor of your estate, or any gifts you might have given one another during your relationship. This means that if you were to pass away and your Will still reflects that you wish to leave everything to your ex-partner, they would still be entitled to inherit everything you owned despite having been separated from you.
Be sure to update your Will as soon as possible following a separation to ensure it reflects your changed circumstances and your current wishes. SE Lawyers can help you to do this.
Q2. What assets will form part of my Estate?
Bridgette: All assets that you own in your sole name will form part of your Estate, as will your share of any assets that you own as tenants in common. However, any assets owned jointly with another person do not form part of your Estate if you are the first to pass away. Instead, the surviving joint proprietor will have the right to the entire joint asset. This is one of the biggest reasons why it is so important to formally finalize any property and financial matters between yourself and your ex-partner through binding Consent Orders.
When talking about superannuation, this might not necessarily form part of your Estate. The reason for this is that superannuation is held on your behalf by the Trustee of your superannuation fund, meaning it is not actually owned in your personal name directly.
Something you may wish to consider is updating your superannuation Binding Death Benefit Nomination. A Binding Death Benefit Nomination allows you to tell your superannuation fund who you would like your superannuation to go to when you pass away. Much like updating your Will, this will ensure that your current wishes are fulfilled.
Q3. If I am in the midst of separation, should I wait until all property matters with my ex-partner have been resolved before updating my Will?
Bridgette: It is best to update your Will as soon as you can once it no longer reflects your wishes. Your updated Will would apply to any assets within your Estate as soon as they form a part of your Estate. If you have commenced proceedings against your ex-partner for a property settlement but pass away before the matter is settled or finalized, the Executor you appoint in your Will would be able to continue those proceedings.
Addressing the changes you wish to make to your Will with a Wills & Estates lawyer is your best option for ensuring your wishes are met, regardless of what stage you are at in your separation.
We hope this blog has educated you further on the importance of updating your wishes and instructions in your Will should you go through the experience of separation.
At SE Lawyers, we offer Wills & Estate and family law services, providing the quality advice and support you need for your matter. To discuss any further questions you may have regarding separation and your Will, reach out to our team today.