The effect of marriage and divorce on a Will

The effect of marriage and divorce on a Will

What is the effect of marriage on my Will?

In most cases your marriage will revoke your Will, meaning that you would no longer have a valid Will in place once you are married. There are some clauses of your Will that marriage will not revoke, but this usually produces a messy and uncertain result.

However, marriage does not revoke a Will when a specific clause is included in your Will, called a 'contemplation of marriage' clause. For this reason, we always ask de facto couples if they intend to marry- sometimes it can prompt some awkward conversations! But it is important from a legal perspective.

Do I need to wait until I am married to do my Will if I plan to marry?

No. You can do it now and include the contemplation of marriage clause, as this will ensure that your marriage does not then revoke your Will.

What is the effect of divorce on my Will?

Divorce does not revoke your Will wholesale, but it does revoke certain parts of your Will- namely, gifts to your ex-spouse! Appointments of your ex-spouse as guardian or as the keeper of your childrens' money until they are adults are not revoked. As this result is often not what is desired, you should update your Will if you divorce.

It is important to note that here we are talking about the legal dissolution of your marriage. Couples must be separated for a period of time before this happens, and as separation does not affect a Will, usually Wills are re-done prior to the actual divorce.

What about property settlement?

Divorce- the legal dissolution of your marriage- is a separate matter to sorting out the division of your property, which can either happen before or after the actual divorce.

While the separation of your property does not invalidate your Will, it does directly affect your Will because the assets you own to pass on have changed.

So when should I re-do my Will?

As soon as a couple are permanently separated they should look at each having their Wills re-done. (Note that they will need separate lawyers at this point). Often at this stage property matters are still being sorted out, so the 'background' of the Will - ie. what is being passed on by the Will - is still shifting.

However, once the property matters have been settled, the Will should be reviewed to make sure it still covers the new asset landscape. Often it will not need to be amended, but it is important to make sure it operates as intended.

Got more questions?

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