SEPARATION & RELATIONSHIP BREAKDOWN IN AUSTRALIA

How does Separation affect Your Will, family after your death, Superannuation & Life Insurance

Can your former partner inherit after your separation

Separation Will DIY Family Law Australia

If after you die, you have a legally valid Will, then what your Will says will determine what happens with your estate (assets).

If you pass away without having a Will (or a legally valid Will) then the laws of intestacy will apply and determine what happens with your estate (assets).

Simply because you have separated,does not automatically mean that your former partner will no longer be able to inherit your assets. It is only (for those married) after a Divorce Order (previously called a Certificate of Divorce) is issued by a Court that your former partner should not inherit your assets, unless after your separate, before you divorce, you take action to make your wishes clear in a way a Court accepts is legally binding.

It is usually recommended that you make a new Will as soon as possible after you separate and further, that you either review that Will after you Divorce, or if you did not make a new Will after you separated, that you make a new Will after your Divorce.

Effect of Separation on a Will made during Marriage

If you are in an opposite sex or same sex relationship and have separated (and have not yet divorced if you were married) and your Will was made before you separated, then your former partner may still inherit your assets if you pass away before the Court issues a Divorce Order.

Your separation will not invalidate a Will you do during your relationship or marriage, not will your separation invalidate the laws of intestacy if you do not have a Will.

It is only after the Court issues a Divorce Order that any Will is nullified (if you have one) or the laws of intestacy will not apply (if you do not have a Will or a valid Will) and should mean your former partner will not inherit your assets.

Effect of Separation if you do not have a Will or a valid Will

Your separation (if you have not divorced if married) will not invalidate the laws of intestacy. This means your former partner may still inherit your assets after your separation if you do not take legally binding steps to stop this happening. It is only after the Court issues a Divorce Order that your former partner should not be able to inherit your assets.

Steps to take with a Will after Separation

You should make a Will as soon as possible after separation if you do not want your former partner to inherit your assets. 

That Will can contemplate a property settlement and/or divorce occurring. 

Provided a new Will is prepared properly, is lawfully signed after separation and has the appropriate clauses contained in it, then that new Will, will still be valid after a Divorce is granted. 

Your lawyer can insert appropriate clauses in your Will so that the Will is still valid after your Divorce and you will not need to then do another Will again, after your Divorce.

Steps to take with your Superannuation & Life Insurance after your Separation

What will happen to your Superannuation and Life Insurance after you die, is not necessarily decided by your Will or the laws of intestacy.

Soon after you separate, you should contact all of your Superannuation and Life Insurance Companies to obtain the forms to complete, sign and submit to them nominating the beneficiary (or beneficiaries) you want to receive your Superannuation and Life Insurance after you die.

If you do not do this, then after you die your former partner may still receive your Superannuation and Life Insurance.

Separation - More Information

Separation affecting those that own houses, buildings or land with your former partner is explained in our fact sheet How does Separation & Relationship Breakdown affect Jointly Owned Property.

Reading our fact sheet The Stages of Separation: How it will affect you & your former partner may help explain understand what you or your partner are going through.

A helpful starting point once you've separated is our fact sheet Separation: What you need to know & where to get free help.

Using a list of what you need to do can help make things easier. See our checklists:

Our fact sheet Separation time limits after Relationship Breakdown tells you the time limits which apply to you.

 

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Content By:
Michelle Beatty
MRB LAW

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