How divorce could affect your estate planning

Date: Apr 01, 2014

Following a divorce, it is important to consider the effect your decision can have on your estate planning. If you hold a will that was drafted while you were married, how does a divorce impact this document?

In New South Wales, when you get a divorce after creating a will, it revokes or cancels any gift made to a former spouse. It will also automatically retract your partner's appointment as the executor, trustee or guardian in the will.

This change will only come into effect once the divorce has been finalised, so your former spouse may still be eligible to claim their gifts in the will during any period of separation. It is therefore important to review your will as soon as a decision to divorce has been made.

However, the New South Wales Trustee & Guardian Attorney General & Justice explains that a divorce will not cancel the engagement of a former spouse as trustee of property left on trust for your children together.

Additionally, if the Court is satisfied that you did not intend to revoke the gift or appointment through divorce, the will may be upheld. These matters require specific legal advice and can result in an estate dispute.

Updating your will after a divorce is especially important if you and your former spouse have children. If you are awarded sole or shared custody in the divorce settlement, you may want to appoint a replacement guardian under your will.

This is critical step if you believe your former spouse is not the best parent for your child. Additionally, it may be worth considering if your ex-partner may make it difficult for your family to see the children.

If you choose to name an alternative caregiver in your will, remember to explain why your ex-spouse should not be the legal guardian so the Courts will understand your choice.

In the event of a divorce, it is also important to update your Power of Attorney and other similar documents. Failure to do so could mean your former partner is still able to make decision on your behalf.

It is also worth keeping in mind that an ex-spouse may still have the power to challenge a will if they believe they have not been sufficiently provided for in your documents.

If you want to know more about how divorce can affect your estate planning, get in touch with the team at Craddock Murray Neumann for expert advice and support.