The breakdown of a relationship may not be the typical ‘family law’ matter we deal with – the breakdown can also create serious estate planning issues.

Did you know?

Separation has no effect on the terms of any existing Will you might have in place.

If you die while separated (but not divorced) your existing Will prevails even if final orders have been made in the Family Court for the division of property and maintenance. As a result, your estranged partner may end up with all your property and may be the executor of your Estate because of your existing Will.

If court proceedings dealing with property and maintenance between you and your estranged partner are in place at the time of your death, your executor can continue with these proceedings. It is important that you have a Will in place to appoint an executor to properly look after your best interests in the court proceedings. This role of “litigation executor” is generally best filled by someone independent.

If you have an Enduring Power of Attorney or Enduring Power of Guardianship in favour of your estranged partner then this continues until revoked. As a result, your estranged partner may still have the right to make decisions and act on your behalf in respect of financial, property, health, lifestyle or other personal matters.

Irrespective of any provision to the contrary in your Will, your estranged partner may still be entitled to claim your superannuation on your death. This may include a life insurance component which might significantly increase the payout. You should contact your superannuation fund (s) immediately to discuss your options.

If you have an existing life insurance policy then you have probably nominated your estranged partner as the beneficiary. If this is not changed all life insurance proceeds may go directly to the nominated beneficiary on your death.

Marriage generally revokes an existing Will unless it was made in contemplation of the marriage. Same sex couples who have been married overseas are now recognised as married in Australia. An existing Will may have been revoked by this marriage without you realising it.

Property owned by you as a joint tenant passes immediately to the surviving joint tenant (s) on your death – this could be your former partner. You may need to sever the joint tenancy, in conjunction with reviewing your Will.

All married couples can divorce. Divorce generally revokes a Will: but divorce is not available to de facto couples. If you do not revoke your will after separation then your former de facto partner may end up with your estate post family court orders.

Please contact us if you have any issues or concerns so we can work to ensure your interests are adequately protected.

IMPORTANT NOTICE: This brochure was prepared by O’Sullivan Davies and updated on 17 March 2021. It presents general information only and is not intended as a comprehensive guide. It is not legal advice. Professional advice should be sought before applying the information to any specific circumstances.