Unlike divorce, marriage separation does not have an effect on your Will. For this reason, the period of separation that occurs prior to divorce is possibly one of the most important times to ensure your Will reflects your changed circumstances.
If you fail to update your Will upon separation, and you pass away, your spouse may inherit any property you have left to them. Similarly, if your Will names your spouse as your Executor, they will be entitled to take up that role regardless if you wanted them to or not. Furthermore, if you do not have a Will, a portion of your estate will still go to your spouse under inheritance laws.
However, divorce does affects your Will. In South Australia, divorce will revoke your former spouse as your Executor, and will revoke any gift you have left them. However, this will still not occur if the court believes you actually intended to leave your former spouse a gift.
Rather than leave these matters to the court to unravel, it’s much better to make a new Will during your separation, to ensure your intentions concerning your former spouse are clear.
You should also consider updating (or putting in place) your binding death benefit notice for your super, so that your super balance (and any insurance in super) ends up where you intend.
If you would like us to review your situation, and provide some advice on how to ensure your assets end up where you intend, call us on 1300 654 590.