When you separate, updating your Will is about the last thing on your mind. There are kids to think about, a house to sort out, and a hundred conversations you’d rather not be having.
We get it. But here’s the thing most people don’t know.
In Queensland, separating doesn’t change your Will at all. If you made a Will while you were together, leaving everything to your partner, that’s still exactly what it says. The day after you separate, and every day after that, until you change it.
Separation changes nothing. Divorce changes some of it.
This is the bit that catches people out, so it’s worth being clear about.
Separation has no effect on your Will. None at all. You could be separated for five years, living somewhere else, in a new relationship, and if you died tomorrow your Will would be read exactly as written. Your ex inherits whatever it says they inherit. If you named them as your executor, they’re the one who administers your Estate.
Divorce is different. Once a divorce order is made, Queensland succession law generally cancels out any gift in your Will to your former spouse, and their appointment as executor along with it. The rest of the Will stands.
But look at the gap that leaves. You can’t even apply for a divorce until you’ve been separated for 12 months, and plenty of people take a lot longer than that to get around to it. That whole stretch is time when your Will still benefits your ex.
And if you were in a de facto relationship, there’s no divorce order to trigger anything at all. The only thing that updates your Will is you.
Three things your Will doesn’t control
Even a well-drafted Will only covers part of what you own. After separation these three matter most, and they’re the ones we see missed over and over.
Your superannuation
Your super doesn’t automatically form part of your Estate, and your Will doesn’t distribute it. It’s paid according to the binding death benefit nomination your fund holds. If you nominated your partner five years ago, that nomination is still sitting there, doing exactly what you told it to do.
For a lot of people, super plus the life insurance attached to it is the biggest asset they’ve got. Sorting out the nomination is often more urgent than the Will itself.
Anything you own jointly
If you own your home as joint tenants, it passes automatically to the surviving owner when you die. It never reaches your Estate, and your Will has no say in it. Changing that means severing the joint tenancy so the two of you hold the property as tenants in common instead. It’s a separate job, and a Will on its own won’t do it.
Who makes decisions if you can’t
An Enduring Power of Attorney naming your former partner stays valid until you revoke it. Which means the person you’ve just separated from could still hold legal authority over your money and your medical treatment. Of everything on this page, this is the one we’d move on first.
So what should you actually do?
You don’t have to sort all of it at once, and you definitely shouldn’t wait until your property settlement is finished.
What we usually suggest is two stages.
First, a simple Will as soon as you can after separation. Usually that means redirecting your Estate to your children or someone else you trust, appointing a new executor, and revoking any Enduring Power of Attorney in your ex’s favour. It’s quick, it’s inexpensive, and it closes the worst of the gaps straight away.
Then, once your property settlement is done and you actually know what you own, we look at it in more detail. That’s also the right time to think about protecting what your children inherit, particularly if there’s a blended family involved and all the glorious chaos that entails.
Can my ex get at what I leave the children?
We get asked this almost every time, and a lawyer’s favourite answer applies: it depends.
If your children are young, an inheritance left to them directly might end up being managed by their other parent. There are ways to deal with that. There are also situations where a former partner can make a claim against your Estate. None of it is unsolvable, but it’s not something to guess at either.
What does it cost?
Less than most people expect. A new Will for one person starts at $550. Our complete package, which includes a proper look at your circumstances, a Will, an Enduring Power of Attorney and a binding superannuation nomination, starts at $880. The full list is on our Wills and succession planning page.
Set against the cost of getting it wrong, it’s one of the easier decisions you’ll make during a separation.
Come and talk to us
If you’ve separated recently, this is worth half an hour of your time. Your first appointment is free, and it’s real legal advice, not a marketing exercise. Book online whenever suits you, or give us a call on 07 2114 7131.
This article is general information only and doesn’t take your personal circumstances into account. It isn’t legal advice. Succession law is state-based and the position may be different outside Queensland. Please talk to a lawyer about your own situation before you act on any of it.
