In Queensland, a change in your marital status (be it marriage or civil/de facto partnership, divorce, or separation from your partner) can have significant repercussions on your existing Will(s). The extent of the effect will depend on your type of relationship and how your current Will is drafted.

Effect of marriage or civil partnership on your existing Will

Marriage or civil partnership will revoke any Wills made prior to the marriage or civil partnership, unless one of the flowing exemptions apply:

• the Will is made “in contemplation” of marriage or the civil partnership; and

• any provisions made in the Will for the new spouse/civil partner are not revoked. For example, anything you leave to the person you will be marrying or partnering with prior to the marriage/civil partnership will remain valid. This includes if you have appointed your future spouse/civil partner as the executor of you Will.

This means that anyone other than your spouse or civil partner who is a beneficiary or appointed executor in your existing Will does not receive their gifts and will have their appointment as executor revoked. If you still want to leave parts of your estate to, or appoint as executor, persons other than your spouse/civil partner after the registration of your marriage or civil partnership, you should either have the Will drafted in contemplation of the forthcoming marriage/civil partnership or have a new Will prepared post-registration.

While an express provision in the Will stating it has been made in contemplation of marriage or civil partnership is not required in Queensland, we nevertheless strongly recommend it be included if you are having a Will prepared prior to entering into marriage or a civil partnership. Otherwise, your executor(s) will need to rely on evidence outside the Will that demonstrates the marriage or civil partnership was contemplated when the Will was drafted. If this provision is not included in your Will, it can be difficult and costly for your executor(s) to prove the Will was made in contemplation of the impending marriage or civil partnership.

Unlike with marriage or civil partnerships, entering a de facto relationship does not revoke your existing Will. It is therefore important to have your Will updated if you are in a de facto relationship and you want your de facto partner to have an entitlement to your estate (if they are not already included in your existing Will).

What if I die after marriage or civil partnership and I have not updated my Will?

Unless your existing Will is drafted in contemplation of marriage or civil partnership, if you subsequently die after marrying or entering a civil partnership before updating your Will to include your spouse or civil partner, your estate will be distributed pursuant to the rules of intestacy.

Although your spouse or civil partner remains entitled to receive a significant portion of your estate under intestacy law, if you have children (from either the current or a previous marriage/civil partnership) or other dependants, they will also be entitled to portions of your estate as specified in the Succession Act 1981 (Qld).

While intestacy laws in Queensland are clear on who is entitled to your estate, and what portion thereof they are entitled to,  they do not take into consideration your wishes or any of your bespoke family circumstances (such as a dependant with a disability).

Effect of divorce or the termination of a civil partnership/de facto relationship on your Will

Unlike when entering a marriage or civil partnership, a divorce or termination of a civil partnership or de facto relationship does not revoke your existing Will except for any provisions concerning your former spouse or civil/de facto partner unless a contrary intention exists in the Will.

The practical implications of divorce or termination of the civil partnership or de facto relationship on your Will is the revocation of:

• any gifts or distributions made to your former spouse or civil/de facto partner in the Will;

• any appointment of your former spouse or civil/de facto partner as executor, trustee (including advisory trustee), or guardian under the Will;

• any grant of power of appointment of your former spouse or civil/de facto partner in the Will (for example, the power to appoint a trustee of a trust which you are the trustee of at the time of your death); and

• standing of your former spouse or civil/de facto partner to legally challenge the terms of your Will by Family Provision Application. 

Any other provisions of your Will remain unchanged, and it is particularly important to note that divorce or termination of a civil/de facto partnership does not revoke:

• the appointment of your former spouse or civil/de facto partner as trustee of any property left on trust for the beneficiaries (for example, a part of your estate left to any minor children to be used for their benefit by the trustee until they can legally accept ownership of the benefit when the reach the age of majority); or 

• the grant of power of appointment exercisable by your former spouse or civil/de facto partner in favour of any children born out of that relationship.

Although divorce/termination of a civil/de facto partnership revokes any benefit to your former spouse or civil/de facto partner, this may cause your estate to be distributed to the remaining beneficiaries in a way that you did not intend. It is therefore crucial that you review your Will in these circumstances to ensure your estate is distributed in accordance with your wishes.

Is my Will still valid if I separate from my spouse or civil/de facto partner?

In Australia, if you separate from your spouse there is a 12-month period before either person can apply for divorce. During the separation period, which lasts until an order for divorce is granted, your Will remains valid.

If you die before the divorce is finalised your separated spouse will still receive any inheritance left to them, continue to have standing to legally challenge the Will, and (if so appointed) remain the executor of your Will and can administer your estate in accordance with its terms.

The law surrounding separation for civil partners and de facto relationships is similar to that of divorce in that the partner’s entitlements endure until the civil partnership or de facto relationship is legally terminated.

While a civil partnership unambiguously ends on the date the application for termination registers, the end date of de facto relationships can sometimes be less clear, which increases the chances of a dispute arising between your beneficiaries if your Will is not updated during any period of separation.

If you are separated or thinking of separating from your spouse or civil/de facto partner, you should strongly consider updating your Will accordingly.

What if I have an Enduring Power of Attorney? 

Unless there is a contrary intention expressed in the Enduring Power of Attorney, if you enter into a marriage or a civil partnership after making an Enduring Power of Attorney, it is revoked to the extent it gives power to someone other than your spouse or civil partner.

If you divorce or terminate a civil partnership while an Enduring Power of Attorney exists that gives power to your former spouse or civil partner, it is revoked to the extent of the power given to your former spouse or civil partner from the date of the divorce order or termination of the civil partnership. It is important to remember that, similar to a Will, during periods of separation an Enduring Power of Attorney that gives power to your spouse or civil partner will remain valid until the relationship is legally ended.

In contrast, the end of a de facto relationship does not revoke the appointment of your former de facto partner in an Enduring Power of Attorney, so it is important to have your Enduring Power of Attorney updated as soon as possible after the end of a de facto relationship if you do not want your former de facto partner to retain these powers. 

Please reach out to us on (07) 5635 0180 if any of the above circumstances apply to you and one of our experienced Wills and Estates lawyers can assist with ensuring your estate planning documents accurately reflect your wishes.