What you need to know about Marriage, Divorce & your Will
Marriage and Divorce can be an overwhelming experience, especially when taking into account your estate planning. So here are a few things you may not know about Marriage and Divorce, and how it affects your Will.
Marriage revokes your Will
Your Will is revoked when you get married. Therefore if you prepare a Will, get married and die without preparing a new Will, your estate may be decided under the laws of intestacy
You can prepare a Will in contemplation of Marriage
Although marriage revokes your Will, you can prepare a Will in contemplation of marriage. If your Will does not expressly state it is made in contemplation of marriage, you will need to prepare a new Will if you get married.
Divorce may (likely) exclude your former spouse. If you get divorced, your Will is read as if your former spouse has died before you. Consequently, the remaining provisions of your Will stay the same besides any references to your former spouse. For example, the provisions appointing your former spouse as your executor or bequeathing your estate to him or her will no longer be valid.
You can appoint your former spouse as your executor and bequeath to him/her your estate
If after divorce you wish to appoint your former spouse as your executor or bequeath to them your estate you must expressly state that in your Will after you are divorced. If you do not expressly state your intention, your former spouse may be excluded from your Will, however, they may still be able to make a claim against your estate.
Your spouse may be entitled even if you have separated
If you prepared a Will when you were married, and have separated from your spouse and have not yet divorced, they are still entitled to a provision from your estate if there is provision in your Will. If you do not wish for them to receive anything from to your estate, you must prepare a new Will making your intentions clear.
Property settlements will not always protect you
Unfortunately, under the Inheritance (Family Provision) Act 1972 (SA), your former spouse may still be able to make a claim on your estate irrespective of the contents of your Will if your intention is not made clear. Property settlement will not always be sufficient to prevent your former spouse from making a claim against your estate.
Note: If you are in a de facto relationship or have separated from a de facto partner, then the above does not apply.
It is important to review your Will regularly. We recommend you pick up your Will annually (as a minimum), review its contents, and decide if it still reflects your current situation.