What does separation or divorce mean for my estate planning?

The separation from a spouse (married or de-facto) is a critical time to review your Will, Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker.

Separation does not revoke your Will, Enduring Power of Attorney or Appointment of Medical Treatment Decision Maker. This means documents executed prior to separation, appointing your spouse, will remain valid post separation. This may lead to the unwanted situation where your former spouse is appointed in a role that you no longer want them to hold.

If you have never made a Will but separate from your spouse and pass away prior to your divorce being finalised, you may be left with a situation where your former spouse becomes entitled share in your estate under the intestacy provision contained in the Administration and Probate Act 1958 (Vic).

Conversely, divorce does affect the validity of your Will. It does so by revoking any gifts or appointments made to your former spouse, so that your will is read as if your former partner had predeceased you. However, divorce does not have any impact on Enduring Powers of Attorney and Appointment of Medical Treatment Decision Maker in existence at the date of the finalisation of your divorce. Without preparing a new Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker and thereby revoking your earlier documents, any appointment of your former spouse will remain a valid, which in most cases is a situation ought to be avoided.

Alongside the other important legal considerations that go along with a separation, consideration should be given to your estate planning to ensure your wishes and intentions are clear.

Justin Hartnett
Principal
M 0419 571 840 | T 5225 5220
E jhartnett@ha.legal

Tayla Berger
Associate
T 03 5226 8559
E tberger@ha.legal