Estate Planning After Separation

Many people assume that separation automatically voids their will, enduring power of attorney and nomination of their former spouse as a beneficiary for any superannuation or life insurance.

This is not the case!

There are certain life events that impact the validity of your will and other estate planning documents. For example, marriage and divorce revoke otherwise valid provisions of a will or enduring power of attorney and it is therefore, essential that you update your estate plan whenever one of those events occur.

Separation does not have the same effect as divorce for married couples. If you are married and then separate, the separation has no effect on your will and enduring power of attorney. For most couples, this means that if you die or become incapacitated prior to your divorce, your spouse will be given both a legal role in making decisions on your behalf and will receive any gifts they are entitled to under your will. This is the case even if you have completed a property settlement.

Different rules apply for de facto couples, however it is equally important for them to update their estate plan after separation.

What needs to be reviewed?

Each person’s estate planning needs may be different depending on the assets they own and the way they own their assets (eg joint tenants/tenants in common).

There are a number of documents which can form part of an estate plan and require regular review, including but not limited to;

1. Your will
2. Your enduring power of attorney
3. Your advance health directive
4. Update your nominated beneficiaries;
a) superannuation – binding death nominations
b) life insurance policy
5. The Structure of any company or trust in which you have an interest.

Estate planning after separation also needs to give consideration to any property held as joint tenants and avoiding delay in finalising a family law property settlement.

Reviewing your will and other estate planning documents is an essential step to take after separation to ensure that your former spouse does not inherit any part of your estate and cannot make decisions on your behalf under any enduring power of attorney.

When preparing your estate plan, it is important to seek advice from a qualified legal practitioner. McLaughlin and Associates Lawyers can assist you to develop and give effect to an estate plan that meets your specific needs while taking into account your individual circumstances.

Written by Samantha Vickery, Senior Associate

You can call us on 07 3808 7777 or email us at askus@mclaughlinlawyers.com.au.

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