Estate Planning & Family Law – What you need to consider…
Separations and divorces can be very stressful experiences. There is a lot to think about and a lot to deal with. Sometimes overlook is the important step of updating your estate planning documents to factor in your change of circumstances.
Many people do not realise that separation does not automatically revoke a Will, Power of Attorney, Superannuation Beneficiary Nomination, Life Insurance Beneficiary Nomination or an Advance Health Directive. This can lead to ex partners being in positions of power in your estate or having access to gifts from your estate that you had no intention that they receive.
Wills & Powers of Attorney
Any clause in your Will or Power of Attorney naming your ex-spouse as an executor, attorney or financial trustee for your children will remain in force until you sign new documents, even if you are divorced. Any clause in your Will which gifts property to your ex-spouse will continue to be effective until divorce or the property settlement is properly finalised.
Similarly, it is usual for parties to have nominated their partner as the beneficiary of their superannuation death benefits. That nomination will be recorded on your Member Statement. Separation does not invalidate that nomination – you should contact your super fund or download a new beneficiary nomination form to ensure that your superannuation does not automatically get paid to your former partner if you die. It may be more appropriate that the funds be paid to your estate so that your ‘new’ executor can deal with them in accordance with the terms of your updated Will.
Jointly Held Property
It is usual for property to be held in joint names when people are married or in long term relationships. Joint property ownership can be recorded in two different ways, as joint tenants or as tenants-in-common. The effect of property being held in the form of joint tenants is that if one person dies, their interest or share in the property automatically reverts to the other person, regardless of the terms of a Will.
Separation and divorce have no effect on joint tenancy – it is important to take the step of signing documents to ‘sever’ the joint tenancy so that you will then own a defined half interest which will not automatically pass to your former partner if you die.
It is common for couples to nominate each other as the beneficiary of their life insurance policies. Neither separation nor divorce have any effect on a life insurance beneficiary nomination. It is vital that you change the nomination by contacting your insurer.
If you would like to discuss updating your estate planning, contact our experienced team today on 07 4931 1888 to arrange an appointment.
This publication is general guidance only and does not consitute legal advice. You should seek specific advice before relying on anything contained in this document.