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Does a marriage or divorce revoke a will in NSW?

People often describe their wedding as one of the best days of their life. Although, depending on the marriage, some may say the same about their divorce.

Whatever your feelings about a marriage or divorce, it’s likely that estate planning is the last thing on your mind during these occasions. However, there are a number of repercussions for your estate when tying the knot or splitting up.

Those who are writing or contesting a will should familiarise themselves with how the state’s legislation handles cases in which the deceased was recently married, separated or divorced.

How does a marriage affect my will?

In NSW, the Succession Act 2006 governs the legal processes associated with inheritance disputes.

Section 12 of the Act states that getting married revokes a spouse’s existing will. In other words, a recently married individual may be deemed to have died intestate if they pass away soon after the wedding.

Intestacy rules in NSW usually mean the entirety of the estate would go to the surviving spouse. Some couples may be satisfied with this outcome, but many people have plans to distribute their assets among multiple beneficiaries.

Spouses should therefore update their will as soon as possible after the marriage to ensure their estate planning still reflects their testamentary aims.

Are there exceptions?

Some parts of your will won’t be revoked when you get married.

For example, if you’ve chosen your spouse as an executor, trustee or guardian, these appointments remain in place. Similarly, any assets left to a spouse are not revoked if you die before updating your will.

Moreover, any will that is specifically written with the contemplation of a future marriage in mind can also avoid revocation.

How does a divorce or separation affect my will?

In NSW, you must be separated from your spouse for 12 months before a family court will finalise your divorce. But separation has no impact on your will, which means any assets bequeathed to your former partner would still be distributed to them if you died.

Understandably, this situation isn’t desirable for most couples who have recently split up, so it’s advisable to update a will quickly after separating from a spouse.

A divorce does revoke parts of the will, including assets distributed to the former spouse and any appointment of them as an executor, trustee or guardian. However, this is not the case if you’ve made specific contrary intentions clear in your will.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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