Divorce is both emotionally and legally challenging. It often raises questions about estate planning and, in particular, whether you need to rewrite your Will after divorce. Beyond affecting your marital status, divorce can significantly impact your Will and other estate documents.
As Wills and Estates experts at Genuine Legal WA, we have vast experience in this area, so the following guide answers key questions about how divorce affects Wills and why updating your Will after finalising your divorce is essential.
Contact us now to arrange a free consultation, or read on to learn more about this topic.
Why Is It Important to Rewrite Your Will After Divorce?
Divorce Will Void Your Existing Will (With Exceptions)
In our experience, one common misconception is that your Will remains untouched by divorce.
However, in Western Australia, divorce can partially revoke or void parts of your Will … but only to an extent. Divorce usually removes your ex-spouse from your Will, voiding provisions that favour them, like asset distribution or naming them as an executor. However, the rest of your Will remains intact.
Failing to rewrite your Will after divorce can lead to assets being distributed in ways that don’t align with your current wishes.
How Divorce Affects Asset Distribution
Divorce does affect asset distribution in your Will, voiding provisions for your ex-spouse and potentially leaving gaps in your estate plan. This can cause confusion or disputes among family members.
Updating your Will ensures your assets align with your current wishes post-divorce.
When Should You Rewrite Your Will?
Timing Considerations Post-Divorce
It’s best to rewrite your Will as soon as your divorce is finalised to reflect your updated situation and avoid outdated provisions. While divorce doesn’t automatically revoke a Will, it must be formally updated after finalisation to ensure your wishes are legally enforceable.
What Happens if You Delay?
Delaying the rewriting of your Will after divorce risks your assets being distributed according to outdated wishes. This could potentially mean that your ex-spouse would still benefit and that your new partner/new relationships miss out. This can add stress for your family and, if you pass away before updating, may lead to court intervention, legal disputes or unintended beneficiaries.
What Are the Steps to Rewrite Your Will?
Consulting with a Lawyer
Rewriting a will after divorce can be complex, which is why it’s essential to consult with an experienced lawyer. Your lawyer will help ensure that your updated Will complies with Western Australian laws and accurately reflects your wishes. Seeking professional guidance is critical when handling sensitive legal documents like a Will, as mistakes can have long-term consequences for your loved ones.
Identifying Key Changes to Make
When you rewrite your Will after divorce, it’s important to consider all aspects of your estate. This includes removing your ex-spouse from key roles such as executor, trustee or beneficiary. You may also want to review provisions for children, new partners or other beneficiaries. One of our experienced lawyers can help identify areas of your Will that need updating, ensuring that it accurately reflects your current wishes.
Ensuring Your Will Reflects Your Current Wishes
We understand that the ultimate goal of rewriting your Will is to ensure it reflects your wishes post-divorce. So, take some time to consider and clarify any changes in your financial situation, relationships or responsibilities.
With the help of one of our dedicated Wills and Estates lawyers, you can ensure that your Will protects your loved ones and distributes your assets according to your current preferences.
Can You Make Changes to Other Estate Planning Documents?
Revising Power of Attorney and Living Wills
In addition to your Will, divorce often requires you to update other estate planning documents, such as your power of attorney and living Will. If your ex-spouse was listed as your power of attorney, you’ll need to appoint a new individual to handle financial or medical decisions on your behalf as soon as possible. Likewise, a living Will may need to be revised to reflect your post-divorce wishes.
Updating Beneficiaries on Insurance and Retirement Accounts
Divorce doesn’t automatically void your ex-spouse as a beneficiary on your life insurance, superannuation or retirement accounts. It’s important to update these documents promptly to ensure your assets go to the intended beneficiaries, such as your children or new partner.
FAQs About Wills and Divorce
What If You’re in the Process of Divorce?
While you are in the process of divorce, your Will remains valid. However, it’s a good idea to update it as soon as the divorce is finalised. Rewriting your Will after divorce means you can avoid any issues with asset distribution or beneficiary designations.
How Do Children from Previous Marriages Factor In?
If you have children from previous marriages, they may be affected by provisions made for your ex-spouse in your Will. In our experience, it’s crucial to update your Will to ensure that your children are adequately provided for and that your ex-spouse no longer holds key roles.
Can A Divorced Spouse Inherit Your Assets?
Does divorce void a Will? In most cases, divorce voids your ex-spouse’s right to inherit assets through your Will. However, if you want them to remain a beneficiary, you will need to explicitly state this in a new Will.
Is a DIY Will Update Sufficient?
While DIY Will kits are available, they often don’t account for the complexities of estate law, particularly after a major life event like divorce. Consulting with one of our lawyers is the best way to ensure your Will is legally valid and meets all necessary requirements.
Is a Will Made Invalid By Separation Alone?
No, separation alone does not void a Will. Only a formal divorce alters the legal status of your Will. If you’re separated but not divorced, it’s important to update your Will to reflect any changes you wish to make.
Protect Your Future After Divorce With Genuine Legal WA
Divorce and Wills can become complicated, making it crucial to protect your estate after such a life change and to rewrite your Will as soon as possible after divorce.
At Genuine Legal WA, we specialise in Wills and Estate planning. Whether you need to rewrite your Will or update other documents, we’re here to ensure your wishes are met. Contact us for a free consultation and secure your future today.
