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  • Gabriella Ferraro

Separated, not divorced and dead. The importance of having a Will.

Written by Gabriella Ferraro

Edited by Dannielle Wright

When a person is dealing with a breakdown of their relationship, they are usually focused on parenting and property disputes. However, it is important that you also consider the implications that these changes in circumstances will have on your estate.

What are the effects of divorce on a Will in Victoria?

When you become divorced, any part of your Will that refers to your former spouse will be revoked, unless there is a clause which shows that you do not intend for this to be the case.

What happens to my estate if I am separated and not divorced?

Separation does not have any effect on a Will. If you do not update your Will post-separation, your Will remains valid and your estate will pass according to that Will.

That means if your Will gifts your entire estate to your former spouse, they are still entitled to inherit your estate after your death, even though you were separated.

If upon your death, you do not have a valid Will, you will die intestate. This means that your estate will be distributed according to the rules of intestacy.

What are the rules of intestacy?

The rules of intestacy provide that:

If your estate is worth approximately $500,000 or less, and -

You die with a partner and no children or children of that relationship, all of your estate will pass to that partner.

If your estate is worth more than approximately $500,000, and -

You die with a partner and no children or children of that relationship, all of your estate will pass to that partner.

You die with a partner and children of a previous relationship, then a share of your estate will also pass to those children.

If you die leaving behind no partner or children, your estate will be distributed to your relatives in this order:

1. parents;

2. siblings;

3. grandparents; then

4. aunts and uncles.

If you die leaving multiple partners, then more complex rules of inheritance apply.

What should I do when I separate from my spouse/de facto partner?

1. Review your circumstances and seek advice from a lawyer;

2. If you already have a will, revise the document, specifically dealing with any entitlements of your former spouse;

3. If you don’t have a will, engage your solicitor to prepare a new will; and

4. Finalise your family law proceedings, as soon as possible!

The information provided in this article is general advice only. Given that each situation is unique, we recommend that you seek legal advice if you are separating from your partner or considering a new will. You can speak to one of our experienced lawyers today on (03) 9311 8911.

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