Does Marriage affect Wills and Estate Planning?
While it is likely your wills and estate planning aren’t at the forefront of your mind when getting married, they are guaranteed to be subject to some significant changes.
Immediate impacts of Marriage on Wills and Estate Planning
First and foremost, getting married will immediately revoke any previous will. For this reason, it is important that you review your will as soon as possible after getting married. This will ensure your estate assets are distributed according to your wishes. The rule that marriage will revoke any previous will does not apply if your will was drafted with a specific clause that it was made consideration of your intended marriage. This is unusual but sometimes people do update their will before they get married. The classic situation where this occurs is when a couple is going on an overseas honeymoon and decide to get their will done just in case there is an accident while travelling.
It is important to note that when you get married, your spouse will immediately become first priority when distributing your estate, meaning that they will be able to make a family provision claim in court, even if you have a valid will. A family provision claim is where an application is made to seek adequate compensation from an estate.
Family provision claims may be made by an eligible person who believes they have had insufficient provision made for them in the deceased’s will. In this situation, a court will consider whether the deceased had a moral responsibility and failed to uphold their legal obligation to provide adequately for the claimant pursuant to Part IV of the Administration and Probate Act. Entering a marriage implicitly imposes a moral responsibility to provide for your spouse and any children.
How does Divorce affect Wills and Estate Planning?
Unless explicitly stated otherwise, in the case of divorce, any terms relevant to your ex-spouse will be immediately revoked. This includes any appointments or assets allocated to them. However, it is important to understand that subject to any agreed property settlement, ex-spouses may still have a right to make a family provision claim. That claim will consider factors such as any existing children, contribution of your former spouse to your welfare, or the nature and duration of the relationship between you and your spouse. In short, the legal consequences of marriage will continue to exist following a divorce or separation.
Implications of Separation
Unlike divorce, separation in a marriage will not have any effect on a will. If you are still legally married, your spouse will still be eligible to inherit any assets, including property left to them, as well as act as executor of your estate should they have been so named in your will.
Can I Exclude an Eligible Person from My Will?
Unfortunately, while you cannot explicitly exclude an eligible person from your will, you may be able to take certain steps to minimise a claim an eligible person may have. These steps could include minimising your owned assets by establishing protective trust and outlining existing significant support provided to the beneficiary or preparing an affidavit accompanying your will that explains the reasons for the decisions you made when preparing your will.
Conclusion
Don’t leave your estate planning to chance. Wills are important, they give you the opportunity to control how your assets are inherited and who will inherit them.
If you need advice or would like to know more about estate planning, we can help. Contact Lord Commercial Lawyers on (03) 9600 0162, email us at info@lordlaw.com.au or fill out the form on this page.
About us
Lord Commercial Lawyers is a commercial and business-focused law firm based in the Melbourne CBD. We work with businesses and individuals to help them achieve their legal and commercial goals
