Separation and divorce are emotionally and financially significant life events, and in the midst of dealing with everything from property settlements to parenting arrangements, your estate plan might be the last thing on your mind. But failing to update your documents could mean your ex still has control over your assets or decision-making if something happens to you. Here’s what you need to review and update as soon as possible.
In Queensland, a divorce automatically revokes any gifts left to your former spouse in your Will, as well as their appointment as your executor. However, separation alone does not have the same effect. If you pass away before your divorce is finalised, your ex could still inherit your estate or act as your executor if named in your Will.
What to do: Update your Will as soon as possible after separation to remove your former spouse from any roles you no longer want them to have. If you have children together, consider how your estate will be managed for their benefit and who will be responsible for overseeing their inheritance.
Like your Will, a divorce automatically revokes your Enduring Power of Attorney to the extent that it gives power to your ex to act as your decision-maker. However, separation alone does not have the same effect.
If you lose capacity before your divorce is finalised, your ex could still step in as your attorney. This could mean your ex having control over the quality of your life (like where you live and what medical treatment you receive) and your assets (like whether your property is sold).
What to do: If you no longer want your ex to have this level of control and/or you want to ensure you have someone you know and trust stepping in as your decision-maker, revoke your existing Enduring Power of Attorney and create a new one appointing someone you trust.
Superannuation does not automatically form part of your estate. Where your super is paid to depends on if you have a valid death benefit nomination in place, and if that nomination is binding or non-binding.
Depending on the particular circumstances of you and your ex, it’s possible your ex may still receive your super after you’ve passed away. Please talk to your estate planning lawyer about the many different strategy options for how your super is dealt with as part of your overall estate plan.
What to do: Review your superannuation nominations as part of your overall estate plan and update them to reflect your current wishes. If your death benefit nomination has expired or isn’t binding, your super fund’s trustee may decide where your money goes, which might not align with your intentions.
Many people take out life insurance to provide financial security for their loved ones. If your former spouse is listed as the policy owner or nominated beneficiary, they may still receive the payout upon your death.
What to do: Contact your insurer to update your policy ownership and beneficiary designations to ensure the funds go to the right people. Where your life insurance funds are paid are an important part of your overall estate plan.
If you have children under 18, their care and financial security will be a top priority. In your Will you can nominate a guardian for your children in the event of your passing. This requires some careful thought about the timing of when that guardianship is to take effect – please get advice from your estate planning lawyer about this.
What to do: Consider who you would want to be responsible for raising your children if you are no longer around. Include your testamentary guardian nominations in your Will and record your parenting guidance in your Letter of Wishes.
If you have a family trust or business, your former spouse may still have control or entitlements under the existing structure, particularly if they were named as a trustee or beneficiary of a trust or a director or shareholder of a company.
What to do: Review any trusts, companies, or partnership agreements to ensure that control and financial benefits are distributed according to your current circumstances.
Your estate plan should reflect your life as it is now, not as it was before your separation. Updating these key documents ensures that your assets are protected, your loved ones are provided for, and your ex no longer has unintended control over your affairs. If you’re unsure where to start, an estate planning lawyer can guide you through the process and give you peace of mind for the future.
Need help updating your estate plan after separation or divorce? Get in touch—we’re here to make the process simple and stress-free. Use our online calendar to book our heart-to-heart initial consult and take the first step toward peace of mind and protection.
[The boring bits] By using our website you agree to our Terms and Conditions, and Privacy Policy
Liability limited by a Scheme approved under professional standards legislation. © Sun Wills & Estates Pty Ltd.
