Separating from a partner is a stressful experience during which there can be a lot to update and organise. One thing that can easily be overlooked is the important step of updating your estate planning documents to factor in your change of circumstances.
Many people do not realise that separation does not automatically revoke a Will, Power of Attorney, Superannuation Beneficiary Nomination, Life Insurance Beneficiary Nomination or an Advance Health Directive.
Wills & Powers of Attorney
Any clause in your Will or Power of Attorney naming your ex-spouse as an executor, attorney or financial trustee for your children will remain in force until you sign new documents, even if you are divorced. Any clause in your Will which gifts property to your ex-spouse will continue to be effective until divorce or the property settlement is properly finalised.
Jointly Held Property
It is usual for property to be held in joint names when people are married or in long term relationships. Joint property ownership can be recorded in two different ways, as joint tenants or as tenants-in-common. The effect of property being held in the form of joint tenants is that if one person dies, their interest or share in the property automatically reverts to the other person, regardless of the terms of a Will.
Separation and divorce have no effect on joint tenancy – it is important to take the step of signing documents to ‘sever’ the joint tenancy so that you will then own a defined half interest which will not automatically pass to your former partner if you die.
It is common for couples to nominate each other as the beneficiary of their life insurance policies. Neither separation nor divorce have any effect on a life insurance beneficiary nomination. It is vital that you change the nomination by contacting your insurer.
Similarly, it is usual for parties to have nominated their partner as the beneficiary of their superannuation death benefits. That nomination will be recorded on your Member Statement. Separation does not invalidate that nomination – you should contact your super fund or download a new beneficiary nomination form to ensure that your superannuation does not automatically get paid to your former partner if you die. It may be more appropriate that the funds be paid to your estate so that your ‘new’ executor can deal with them in accordance with the terms of your updated Will.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.