Understanding how divorce and separation affect your will is essential for protecting your estate and ensuring your assets go to the people you intend. This guide explains the legal effects, state-by-state rules, and steps to take when your relationship ends.
This article is part of WillBuddy's Knowledge Centre, created to help Australians understand divorce and separation impacts on wills.
Quick Answer
In Australia, divorce automatically affects your will but separation does not. After divorce, gifts to your ex-spouse and their appointments as executor, trustee, or guardian are revoked, while the rest of your will stays valid.
- Separation = no change: Your current will continues unchanged on separation, so a separated spouse can still inherit everything until you make a new will.
- Divorce revokes ex-spouse provisions: Gifts to your former spouse are treated as if they predeceased you, and the remainder of the will remains operative.
- Super isn't automatic: Divorce does not change your binding super nomination or life insurance, you must update these yourself.
- Act immediately: Make a new will on day one of separation and review powers of attorney and beneficiary nominations.
Divorce vs Separation: Critical Differences
Key point
Divorce automatically affects your will (gifts and appointments to your ex-spouse are revoked), but separation has no automatic effect, so a separated spouse can still inherit everything until you make a new will.
The most important distinction in estate planning:
| Event | Effect on Will | Effect on Super | Effect on Property |
|---|---|---|---|
| Separation | ❌ NO automatic effect | ❌ NO automatic effect | ❌ NO automatic effect |
| Divorce | ✅ Affects ex-spouse provisions | ❌ NO automatic effect | May trigger property settlement |
| Death of spouse | ❌ Will remains valid | Paid per nomination | Passes per will/intestacy |
Critical warning: Separation does NOT change your will. If you separate but don't make a new will, your separated spouse could still inherit your entire estate.
How Divorce Affects Your Will
Automatic Changes After Divorce
When your divorce becomes final (not when you separate), these changes occur automatically by law:
| Provision | Effect After Divorce |
|---|---|
| Gifts to ex-spouse | Treated as if ex-spouse predeceased you (gift fails) |
| Ex-spouse as executor | Appointment revoked |
| Ex-spouse as trustee | Appointment revoked |
| Ex-spouse as guardian | Appointment revoked |
| Gifts to ex-spouse's relatives | Usually remain valid (state-dependent) |
| Rest of will | Remains valid and operative |
What Happens to Failed Gifts?
When a gift to your ex-spouse fails, it typically:
- Passes to substitute beneficiary (if named in your will)
- Falls into residue (if no substitute named)
- Passes by intestacy (if it was the residuary gift)
Example: Your will leaves "my home to my spouse, or if they predecease me, to my children equally." After divorce, the gift to your ex-spouse fails, but your children inherit the home as substitute beneficiaries.
State-by-State Legislation
New South Wales
| Aspect | NSW Rules |
|---|---|
| Legislation | Succession Act 2006 (NSW), s13 |
| Divorce effect | Ex-spouse treated as having predeceased |
| Separation effect | No automatic effect |
| De facto separation | No automatic effect |
| Family provision claims | Ex-spouse eligible under s57 |
| Claim time limit | 12 months from death |
Key point: Even where divorce revokes gifts to a former spouse, that ex-spouse may still qualify as an eligible person to bring a family provision claim against the estate, so divorce does not always end their potential interest.
Victoria
| Aspect | VIC Rules |
|---|---|
| Legislation | Wills Act 1997 (Vic), s14 |
| Divorce effect | Ex-spouse's appointments and gifts revoked |
| Separation effect | No automatic effect |
| De facto separation | No automatic effect |
| Family provision claims | Ex-spouse eligible under Part IV Administration and Probate Act 1958 |
| Claim time limit | 6 months from grant of probate |
Queensland
| Aspect | QLD Rules |
|---|---|
| Legislation | Succession Act 1981 (Qld), s15 |
| Divorce effect | Ex-spouse treated as having predeceased |
| Separation effect | No automatic effect |
| De facto separation | No automatic effect |
| Family provision claims | Ex-spouse eligible under Part 4 |
| Claim time limit | 9 months from death (6 months from grant if later) |
Other States
| State | Legislation | Divorce Effect |
|---|---|---|
| Western Australia | Wills Act 1970 (WA), s14A | Ex-spouse provisions revoked |
| South Australia | Succession Act 2023 (SA) | Ex-spouse provisions revoked |
| Tasmania | Wills Act 2008 (Tas), s17 | Ex-spouse provisions revoked |
| ACT | Wills Act 1968 (ACT), s20A | Ex-spouse provisions revoked |
| Northern Territory | Wills Act 2000 (NT), s15 | Ex-spouse provisions revoked |
Separation: Why Immediate Action is Essential
Key point
During separation, your current will remains fully valid and all gifts to your spouse still take effect, so make a new will on Day 1 of separation.
The Separation Risk
During separation (before divorce is finalised):
- Your current will remains fully valid
- All gifts to your spouse will take effect if you die
- Your spouse may still be your executor
- Intestacy rules favour your spouse if you have no will
Separation Timeline
| Period | Risk Level | Action Required |
|---|---|---|
| Day 1 of separation | HIGH | Make new will immediately |
| First 12 months | HIGH | Review all estate planning documents |
| Property settlement | MEDIUM | Update will to reflect new assets |
| Divorce finalised | LOWER | Automatic revocation takes effect |
| Post-divorce | ONGOING | Make new will reflecting final situation |
Case Study: The Separation Risk
John and Mary separated after 20 years of marriage. John intended to update his will but died in a car accident 6 months later, before their divorce was finalised. His will left everything to Mary. Because they were only separated, not divorced, Mary inherited John's entire $800,000 estate, despite John having told his children he intended to leave them his assets.
Lesson: Make a new will on Day 1 of separation.
Superannuation and Life Insurance
Superannuation Death Benefit Nominations
Critical: Divorce does NOT automatically change your super beneficiary nominations.
| Nomination Type | Effect After Divorce |
|---|---|
| Binding nomination | Remains valid, ex-spouse will receive benefits |
| Non-binding nomination | Trustee has discretion, may consider current situation |
| Reversionary pension | Remains valid unless specifically changed |
| No nomination | Trustee decides based on dependants and legal representatives |
Steps to Update Superannuation
- Contact your super fund(s) immediately
- Request new nomination forms
- Complete new binding death benefit nominations
- Name your intended beneficiaries (children, estate, new partner)
- Ensure nominations are valid and witnessed
- Confirm receipt with your super fund
Life Insurance
| Policy Type | Divorce Effect |
|---|---|
| Policy owned by you, ex-spouse beneficiary | No automatic change, update required |
| Policy owned through super | Follows super nomination rules |
| Policy owned by ex-spouse on your life | Ex-spouse retains ownership and benefits |
| Joint policy | May need to be split or cancelled |
Property Settlement Considerations
Property Settlement and Your Will
Property settlements during divorce affect what assets you have to leave:
| Situation | Estate Planning Action |
|---|---|
| Pending settlement | Make interim will covering current assets |
| Settlement complete | Make final will reflecting new asset position |
| Superannuation split | Update nominations for remaining balance |
| Business interests divided | Update business succession planning |
| Family home transferred | Update will accordingly |
Binding Financial Agreements (BFAs)
Binding Financial Agreements (often called "prenups" or "postnups") can affect estate claims:
| BFA Type | Effect on Estate Claims |
|---|---|
| Pre-marriage BFA | May limit ex-spouse's family provision claims |
| During marriage BFA | May define property division and limit claims |
| Separation BFA | May finalise entitlements and bar claims |
| No BFA | Ex-spouse retains full right to claim |
Note: Even with a BFA, courts can set them aside in certain circumstances. Legal advice is essential.
Family Provision Claims by Ex-Spouses
Can My Ex-Spouse Claim Against My Estate?
Yes. In all Australian states, a former spouse can make a family provision claim if:
- They demonstrate financial need
- The will doesn't make adequate provision for them
- They file within the time limit
Factors Courts Consider
| Factor | Relevance |
|---|---|
| Length of marriage | Longer marriages may strengthen claims |
| Financial contributions | What did each party contribute? |
| Current financial position | Does ex-spouse have need? |
| Property settlement | Was there a fair settlement? |
| Other beneficiaries' needs | Competing claims from children etc. |
| Testator's reasons | Why was ex-spouse excluded? |
| Time since divorce | Generally weakens over time |
Reducing Claim Risk
| Strategy | How It Helps |
|---|---|
| Complete property settlement | Fair settlement reduces need-based claims |
| Binding Financial Agreement | May bar or limit claims |
| Document reasons | Explain your distribution rationale |
| Small specific gift | Acknowledge the relationship |
| Professional drafting | Ensure will is defensible |
De Facto Relationships
Separation from De Facto Partner
De facto separation has the same effect as married separation, NO automatic change to your will.
| Situation | Your Will |
|---|---|
| De facto relationship ends | Will remains unchanged |
| De facto partner still named | They inherit as per will |
| De facto partner was executor | They remain executor |
De Facto Partner's Rights
| State | De Facto Recognition for Family Provision |
|---|---|
| NSW | 2 years cohabitation or child together |
| VIC | 2 years cohabitation (registered or unregistered) |
| QLD | 2 years cohabitation or child together |
| WA | 2 years cohabitation |
| SA | 3 years cohabitation or child together |
Blended Family Estate Planning
After Divorce: New Relationships
When you form a new relationship after divorce, estate planning becomes complex:
| Consideration | Planning Strategy |
|---|---|
| Current partner vs ex-partner | Clearly define who receives what |
| Children from first marriage | Testamentary trusts protect their interests |
| Children from new relationship | Equal or different treatment? |
| Step-children | No automatic inheritance rights, must be named |
| New partner's children | Consider mutual wills or binding agreements |
Testamentary Trust Strategies
| Structure | How It Works |
|---|---|
| Life interest trust | New spouse can live in/use asset, then passes to children |
| Income trust | New spouse receives income, capital to children |
| Discretionary trust | Trustee decides distributions among beneficiaries |
| Protective trust | Protects vulnerable beneficiaries |
Example: Life Interest for New Spouse
"I give my home to my Trustees to hold on trust to allow my spouse [Name] to live in the property during their lifetime, and upon their death or earlier departure, to distribute to my children [Names] in equal shares."
This balances providing for a new spouse while protecting children's inheritance.
Powers of Attorney and Guardianship
Enduring Powers of Attorney
Divorce may affect your powers of attorney differently than your will:
| Document | Effect of Divorce (NSW) | Effect of Separation |
|---|---|---|
| Enduring Power of Attorney | Not automatically revoked | Not affected |
| Appointment of Enduring Guardian | Not automatically revoked | Not affected |
Action required: Revoke existing powers and appoint new attorneys/guardians.
Steps to Update Powers of Attorney
- Make new Enduring Power of Attorney appointing trusted person
- Make new Appointment of Enduring Guardian
- Formally revoke old documents
- Notify relevant institutions
- Provide copies to new attorneys
Executor Considerations After Divorce
Choosing a New Executor
Your ex-spouse's appointment as executor is automatically revoked by divorce. Consider:
| Option | Pros | Cons |
|---|---|---|
| Adult child | Knows family, no cost | May have conflicts with siblings |
| Trusted friend | Neutral, capable | May predecease you |
| Professional executor | Expert, impartial | Fees 1%–5% of estate |
| Public Trustee | Government backed, impartial | Can be slow, fees apply |
| Co-executors | Checks and balances | May disagree |
Avoiding Executor Conflicts in Blended Families
- Consider a professional executor for neutrality
- Appoint co-executors (e.g., one child from each relationship)
- Provide detailed guidance in your will and letter of wishes
- Consider separate executors for different assets
Checklist: After Separation
Immediate Actions (Within 1 Week)
- Make a new will with new beneficiaries
- Update superannuation death benefit nominations
- Review life insurance beneficiaries
- Consider interim arrangements for children
Short-Term Actions (Within 1 Month)
- Revoke existing powers of attorney
- Make new Enduring Power of Attorney
- Make new Appointment of Enduring Guardian
- Notify bank of separation (joint accounts)
- Review joint assets and ownership structures
Medium-Term Actions (During Property Settlement)
- Update will as assets are divided
- Consider Binding Financial Agreement
- Update super nominations after split
- Review business succession plans
- Consider children's ongoing needs
After Divorce is Finalised
- Make final will reflecting your new situation
- Confirm all nominations are updated
- Document your reasons for distribution
- Store will safely and inform executor
- Review periodically as circumstances change
Common Mistakes to Avoid
Mistake 1: Assuming Separation Changes Your Will
Problem: Your separated spouse can still inherit everything. Solution: Make a new will immediately upon separation.
Mistake 2: Forgetting Superannuation
Problem: Super can be your largest asset and isn't affected by divorce. Solution: Update nominations with every super fund.
Mistake 3: Not Updating Powers of Attorney
Problem: Ex-spouse may still make decisions for you if incapacitated. Solution: Revoke old powers and appoint new attorneys.
Mistake 4: Ignoring Family Provision Claim Risk
Problem: Ex-spouse can challenge your will. Solution: Complete fair property settlement, consider BFA, document reasons.
Mistake 5: Forgetting Step-Children
Problem: Step-children have no automatic inheritance rights. Solution: Specifically name them if you want them to inherit.
Legislation and Official Resources
Will-making in Australia is governed by each state and territory's own succession legislation. The core statutes include:
- New South Wales: Succession Act 2006 (NSW)
- Victoria: Wills Act 1997 (Vic)
- Queensland: Succession Act 1981 (Qld)
- South Australia: Succession Act 2023 (SA)
- Western Australia: Wills Act 1970 (WA)
- Tasmania: Wills Act 2008 (Tas)
- Australian Capital Territory: Wills Act 1968 (ACT)
- Northern Territory: Wills Act 2000 (NT)
Because requirements differ between states and are amended over time, always confirm the current rules for your state, or seek advice from a qualified legal professional.
Related Guides
- Revoking or Cancelling a Will – Revocation methods
- Blended Family Will Planning – Complex family structures
- How to Update Your Will – Making changes
- Minor Children in Your Will – Children's trusts
Further Reading
- Family Court of Australia – Divorce proceedings
- LawAccess NSW – Separation
- Victoria Legal Aid – Separation
- Legal Aid Queensland – Family Law
Getting Professional Help
Divorce and separation create complex estate planning situations. Consider consulting:
- Estate planning solicitor – Will drafting and trust structures
- Family lawyer – Property settlement and BFAs
- Financial planner – Super and investment restructuring
- Accountant – Tax implications of asset division
WillBuddy helps you create a new will quickly after separation, ensuring your assets are protected. Start free and preview your complete draft before you pay.
Reviewed and current as at 12 June 2026.
This article is general information only and is not legal advice. Laws change over time and vary between Australian states and territories, so always confirm the current position and consider advice from a qualified legal professional for your specific circumstances.