Updating your will after divorce
Divorce doesn't revoke a will, but it does affect gifts to former spouses. Here's how separation and divorce change your estate plan.
In South Australia, divorce – but not separation – removes the former spouse from the will by operation of section 20B of the Wills Act. Separation has no automatic effect, which is why it's critical to update the will on separation, not wait for the divorce.
Divorce: section 20B
When a divorce is finalised, section 20B of the Wills Act 1936 (SA) treats the former spouse as if they had died before the testator for purposes of:
- Gifts made to the former spouse
- Appointments as executor, trustee, or guardian
- Powers given to the former spouse
The rest of the will remains valid. If a substitute beneficiary or executor was named, they step in.
Separation: no automatic effect
Separation alone does nothing to the will. If you separate but don't divorce, and you die, your separated spouse may still inherit under the existing will. This is a common surprise during long separations.
De facto relationships
The rules for de facto relationships are similar but different. A de facto relationship that ends doesn't automatically affect the will – the Wills Act section 20B applies to divorce specifically. De facto separation must usually be addressed by updating the will or making a new one.
What to do on separation
Update the will immediately
Don't wait for divorce. Make a new will or codicil that reflects the separation – removing the separated spouse from beneficiary positions, executor roles, and guardianship appointments.
Update EPA and ACD
If your separated spouse was your attorney under an enduring power of attorney or substitute decision-maker under an advance care directive, replace them. These documents have their own revocation processes.
Super nominations
Your binding death benefit nomination may name your separated spouse. These nominations aren't automatically affected by separation or divorce – you need to revoke them manually.
Joint tenancies
If you own property as joint tenants with your separated spouse, the property passes to them on your death regardless of what the will says. Consider severing the joint tenancy into tenants-in-common.
Family law proceedings
Family law proceedings affect property division during divorce. Estate planning changes you make during separation still apply if you die before proceedings conclude – but the property may be subject to family law orders. Coordinate with your family lawyer.
Summary
Divorce has an automatic effect on the will; separation does not. Update your will, EPA, ACD, super nominations, and joint tenancies on separation, not when the divorce is final. The gap between separation and divorce is often years – don't leave your ex inheriting in the meantime.
Talk to Sam about your situation
If this article raised questions for your own circumstances, Sam Michele offers free 20-minute initial consultations. Learn more about our wills service, or book a consultation.
Related reading
Disclaimer: This article is general information only and does not constitute legal advice. Estate planning is deeply personal - every family's circumstances are different. For advice specific to your situation, please contact Rosewood Succession Solicitors.