Can your former Spouse inherit after your Separation or Divorce
If you die and have a valid Will, then your Will sets out what is to happen with your estate (assets) after your death.
If you die without having a Will (or a valid Will) then the laws of intestacy apply.
Just because you have separated, does not mean that your former spouse will no longer be able to inherit your assets if you die before you get a Divorce Order issued by the Court.
Only the granting of a Divorce Order (previously called Certificate of Divorce) will invalidate any Will you made during your marriage.
If you did not make a valid Will during your marriage, or have never made a valid Will, it is only after a Divorce Order is issued by the Court, that the laws of intestacy will mean your former spouse should not inherit any of your estate (assets) after your death.
This means that by law, after you separate and before your divorce is finalised, your spouse can still inherit under your Will, or in the absence of a valid Will, under the laws of intestacy, unless you take action to make your wishes clear in a way a Court would accept is legally binding.
It is generally recommended you do a new Will soon after you separate and that you either review that Will after you Divorce, or if you did not do a new Will after separation, certainly that you make sure you do a new Will after your Divorce.
Effect of Separation & Divorce on a Will made during Marriage
If you are separated (and not yet divorced) and you have a Will which was done before your separation, then your former spouse may still inherit if you die before a Divorce Order is issued by the Court.
Separation does not invalidate any Will you made during your marriage, nor does your separation invalidate the laws of intestacy.
Only the issuing of a Divorce Order will nullify any Will (if you have one) or help reduce the likelihood of laws of intestacy meaning your former spouse may inherit.
Effect of Separation & Divorce if you do not have a Will at all or a valid Will
If you have separated (and not yet divorced) and you do not have a Will (or a valid Will, including a Will made after separation containing relevant clauses) then your former spouse may still inherit if you die before a Divorce Order is issued by the Court.
If you have never made a Will, then it is only after a Divorce Order is issued by the Court that you could be confident that your former spouse should not be able to inherit your assets. The same applies if you have a Will but it is not legally valid.
Steps to take with a Will after Separation
If you do not want your former spouse to inherit your assets, then you should make a new Will as soon as possible after you separate.
If a new Will is made after separation but before Divorce, then your lawyer can insert appropriate clauses in your Will so that the Will is still valid after your Divorce and you will not need to then do another Will again, after your Divorce.
Steps to take with a Will after Divorce
After a Divorce Order is made it is very important that you review your Will (and your Power of Attorney) since Divorce invalidates any previous Will you may have made.
Steps to take with your Superannuation & Life Insurance after your Separation or Divorce
What happens with your Superannuation and Life Insurance after you die is not necessarily governed by your Will or the laws of intestacy.
As soon as possible after you separate (or after your Divorce if you have not already done so), you should contact your Superannuation and Life Insurance companies and obtain the forms to complete, sign and submit to them nominating a beneficiary for your Superannuation and Life Insurance.
If you do not do so, your former spouse may still receive your Superannuation and Life Insurance after you die.
More Information on Divorce in Australia
You can read information in our other information sheets on What you need to do to be able to apply for a Divorce including information about the requirements to apply, overseas marriages, separations under the same roof and how periods of reconciliation are treated.
If you have been married for less than two years the court has additional requirements which are detailed in our information sheet Divorce for Marriages under 2 years duration.
Courts do not consider all issues you may be worried about when granting a divorce. The issues the Court looks at are explained in our information sheet What things will a Court want to know to grant a Divorce.
Our information sheet A list of steps you need to take to get a Divorce gives you an easy to follow procedure to help you do your own divorce step by step.
Especially if you are representing yourself you will want to know what will happen on the day you have to go to Court for your Divorce. Read our information sheet What happens at the Divorce Hearing to find out more.
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Other Pages in the Divorce Section
- When, how to & the requirements to get a Divorce
- Separations under the Same Roof
- How reconciliations after separation affect the 12 month period
- List of Steps to follow to get a Divorce
- How much does a Divorce Cost
- How long does a Divorce Take
- Divorce in Australia when Married Overseas
- Divorce for Marriages under 2 years duration
- What a Court wants to know to grant a Divorce
- What happens at the Divorce Hearing
- How does Divorce affect your Will, family after Death, Superannuation & Life Insurance