Rewriting Your Future: Why Separation or Divorce Should Prompt an Estate Planning Update in South Australia

Life can take unexpected turns, and one of the most challenging experiences you may encounter is divorce or separation. Beyond the emotional and financial complexities, this life-changing event can have a lesser known but profound impact on your estate planning. Let’s explore why it’s crucial to update your estate planning in these circumstances.

A Fresh Start for Your Assets

Divorce or separation often means a significant change in your financial situation. You may have acquired assets or liabilities into your sole name that were not present when you first created your Will. To ensure that your assets are distributed according to your current wishes, updating your Will is imperative. Seek advice as to the best estate planning options for your new circumstances and safeguard your wealth for your loved ones.

Protecting Your Loved Ones and Their Inheritance

Chances are, your initial Will named your former spouse as a beneficiary. If you are separated but die before you divorce, your spouse would inherit if named as beneficiary in your Will. After a divorce, gifts to your former spouse in your Will fail, as if your former spouse had predeceased you (unless your Will expressed the intention that the gifts remain in the event of divorce, which is rare). However, the automatic changes after divorce may cause issues if you have not specified alternate beneficiaries, or if you would not want to leave everything to those named.

If you do not have a Will and have not yet divorced, your former spouse may be entitled to the whole or part of your estate, depending on the circumstances.

While former spouses are entitled to make a claim against your estate, preparing a new Will is better than taking no action at all. Once the new Succession Act 2023 is in force, your wishes will be the primary consideration for the Court, and your former spouse would only be entitled to make a family provision claim if they can satisfy the Court that immediately before your death there was no agreement or order relating to property in force between you. Seek family law advice to make sure you finalise your property settlement, as well as updating your Will.

Although certain appointments and provision may be voided by divorce in South Australia, you should still take proactive steps to update your documents especially while you are separated but not yet divorced. This ensures that your assets go to the people you intend, like your children or other family members who may have become more significant in your life post-separation.

Superannuation & Life Insurance

If you have separated, you should prepare a new binding nomination for your superannuation, to nominate either your estate, or specific dependents, rather than your spouse. If you do not have a binding nomination in place, your superannuation trustee will go through a claim staking process and your former spouse may try to claim your superannuation and argue that you were still spouses at the time of your death. Having a binding nomination in place will make the process a lot smoother when it comes to having your superannuation benefits paid out after your death.

You should also seek advice from financial planners in relation to updating any life insurance policies to name children or your legal personal representative (your estate) rather than your spouse.

Safeguarding Your Interests

Wills

Appointments of former spouse as executor, trustee or guardian are voided, as if your former spouse had predeceased you. If you have an alternative executor, trustee or guardian, they would instead be appointed upon your death. If they are not your preferred choice, or if there is no alternative, you should update your Will as soon as possible.

Your parents and other family members should also review their estate planning, especially so if you are a beneficiary.

Power of Attorney

Unless your Power of Attorney (POA) included a specific condition relating to divorce, if you have appointed your spouse, that power will still either remain enlivened or could become enlivened upon incapacity (subject to how the power has been created).

If you do not have a POA, your former spouse could go to the South Australian Civil and Administrative Tribunal and try to seek orders of administration to act on your behalf.

Preparing a new Power of Attorney will provide much needed clarity and security in the event it is required.

Advance Care Directive

Beyond the financial aspects, your health and well-being should be a priority. If you have granted your former spouse the authority to make medical decisions on your behalf, it is essential to review and make new appointments under an Advance Care Directive. This ensures that your healthcare preferences are aligned with your current circumstances and the people you trust. Don’t leave life and death decisions in the hands of your former spouse.

A Chance for a Fresh Perspective

A divorce or separation is a time of reflection and renewal. It offers an opportunity to reassess your life goals and priorities. Updating your estate planning can be a cathartic process, enabling you to embrace the next chapter of your life with clarity and confidence. Your Will should be a reflection of your current values, aspirations, and the people you cherish.

Do I need to wait until the divorce is final?

No. It is arguably more important to update your documents now to ensure that if something happens before the divorce is final, the right people are appointed and will benefit from your estate.

Life’s journey isn’t always predictable, and divorce or separation can be a significant turning point. Updating your estate planning on separation is a vital step in securing your financial future and protecting your loved ones. Embrace this opportunity to create a Will that truly reflects your current circumstances, values, and aspirations. By doing so, you can look forward to the future with peace of mind and a renewed sense of purpose.