Recently separated? Here’s why you need to review your Will

Separation is one of life’s most emotionally and practically challenging events. Amid the upheaval, it’s easy to overlook some of the less obvious but incredibly important legal tasks.

One that is often missed is updating your estate planning documents:

• your Will
• your Powers of Attorney, and
• your superannuation nominations

As experienced Wills and Estate lawyers

We regularly meet clients who are surprised to learn that separation does not invalidate their Will, revoke their Powers of Attorney, or change their superannuation arrangements. This can create significant risks for you and your loved ones if something unexpected were to happen. Let’s break it down further:

Your Will still operates until divorce

Under Victorian law, separating from your partner doesn’t cancel your Will. If your Will was made during your relationship, it likely names your former partner not only as a beneficiary, but also as your executor – the person responsible for administering your estate after your death.

If you pass away without updating your Will, your ex-partner may still: 

• Inherit from your estate 
• Control how and when your assets are distributed 
• Make decisions about funeral arrangements and manage any disputes.

Many people understandably no longer want their former partner to have this level of responsibility or authority after separation. Making a new Will asap ensures that someone you trust is appointed to carry out your wishes and that your assets go where you intend.

What if you die without a Will while separated?

If you die without a valid Will, you are considered to have died intestate and your estate will be distributed according to a fixed legal formula set out in Victorian law. If you’re still legally married at the time of your death, even if you’ve been separated for months or years, your former partner may still be legally entitled to a significant portion, or even all, of your estate. 

This means: 

• Your ex-partner could inherit your assets 
• Your children or other loved ones may receive less or miss out entirely 
• Someone you wouldn’t choose could apply to administer your estate 

This is often the exact opposite of what people intend after separation. The only way to ensure your estate is distributed according to your wishes is to make a valid, up to date Will. 

Powers of Attorney can be even more urgent

Even more pressing are your Enduring Powers of Attorney, which allow someone to make financial, personal, or medical decisions on your behalf if you’re unable to do so. 

If your ex-partner is currently appointed, they could exercise control over: 

• Your bank accounts, property and other assets 
• Where you live or what care you receive 
• Your medical treatment, including critical health decisions 

This can be deeply concerning in a post separation context.

Don’t forget your superannuation nominations

Superannuation is not automatically covered by your Will, and it doesn’t form part of your estate unless specific steps are taken. Most super funds allow you to make a binding nomination of who should receive your super (and any associated life insurance) when you pass away. 

If your ex-partner is still nominated, they may receive your super, even if your Will says otherwise. This is a crucial step that’s often overlooked but can have major financial implications. 

After separation, it’s essential to: 

• Check whether your nomination is binding or non-binding 
• Review who is currently nominated 
• Update your nomination to reflect your current wishes
  

Don’t wait until your Family Law matters are finalised!

Many people assume they need to wait until their property settlement or parenting arrangements are finalised before updating their estate plan. This is a risky misunderstanding. 

Life is unpredictable. If something were to happen to you during this transition period, your ex-partner could still have decision-making power over your health and finances, or inherit from your estate, even if that’s no longer your wish. 

Updating your Will and Powers of Attorney now provides peace of mind during a time of uncertainty. And importantly, it’s easy to revise your documents again later once your family law matters are finalised.

It’s far better to have something in place now than to be left without a valid Will at all.

You’re in a transition period. Your documents should reflect that

Separation involves change. Emotionally, practically and financially. Your legal documents need to keep up with that change. A new Will, updated Powers of Attorney, and revised super nominations help: 

• Reflect your current intentions 
• Appoint the right people you trust 
• Provide clarity to your loved ones 
• Reduce the chance of disputes or confusion.