Steps to Take After You Separate From Your Spouse
Separation is a significant life event that comes with many legal, emotional, and financial considerations, especially when it comes to your estate plan. Whether you’ve separated from a spouse after marriage or from a de facto partner, reviewing and updating your estate planning documents is critical to protecting your legacy and ensuring your wishes are honoured.
In this article, we explore the key steps you should take after separating from your spouse to safeguard your estate and reduce the risk of future disputes.
1. Update Your Will Immediately
One of the most important steps after separating is to update your Will. This is especially urgent if your current Will was prepared when you were still in the relationship.
In most couple Wills, it’s common for the spouse to be named:
As the executor
As the primary beneficiary of personal belongings
As the recipient of the entire residuary estate
If you separate but do not update your Will, these provisions may remain in effect until a formal divorce is granted (for marriages), or indefinitely in the case of de facto relationships. In Queensland, gifts to a former spouse and their appointment as executor become void only upon divorce, not separation.
Until then, your ex may still be legally entitled to act as executor and receive significant benefits under your Will.
If you're in a de facto relationship, the situation can be more complex. There is no formal paperwork to mark the end of the relationship. The best protection is to make contemporaneous notes about the date of separation and update your Will as soon as possible. This helps protect your estate from claims made by a former partner asserting that the relationship was ongoing at the time of death.
2. Review Guardianship Provisions
If you share children with your former partner, it’s important to consider who you would want to be appointed as their legal guardian if both you and the other parent pass away.
While the surviving parent will generally have guardianship rights, it’s still a good idea to specify your preferences in your Will in the event of both parents’ deaths. This ensures the court has clear guidance on your wishes especially if your former partner doesn’t have a Will or hasn’t made appropriate guardianship provisions.
3. Review Your Property Ownership Structure
Many separated couples continue to co-own property for a period of time following separation. If you own property as joint tenants, this presents a risk.
In Queensland, property owned as joint tenants does not form part of your estate when you pass away. Instead, your interest automatically passes to the surviving joint tenant, regardless of what your Will says.
To avoid this outcome, you can sever the joint tenancy and convert the ownership structure to tenants in common. This allows your 50% interest in the property to form part of your estate and be distributed according to your updated Will.
This is a straightforward process in Queensland. You don’t need your former partner’s agreement. You just have to provide written notice that you have severed the joint tenancy.
4. Notify Superannuation and Life Insurance Providers
Another crucial step after separation is reviewing your superannuation and life insurance nominations. In many cases, former spouses remain listed as binding death benefit nominees long after separation. This means they could still receive your super or life insurance benefits even if your Will says otherwise.
To avoid this, update your beneficiary nominations directly with your super fund and insurance providers. These assets fall outside your estate unless specifically directed, so your Will alone won’t override an outdated nomination.
5. Work with Your Family Lawyer and Estate Lawyer
Separation often involves multiple areas of law. It’s important to have professionals who can work collaboratively to ensure your legal documents align and that nothing falls through the cracks.
At Vicca Law, we regularly work alongside family lawyers to ensure that separated individuals have comprehensive estate planning in place, including Wills, Enduring Powers of Attorney, and updated ownership structures.
Take Action Sooner Rather Than Later
If you’ve recently separated from a spouse ,whether married or de facto, the sooner you take these steps, the better protected your estate will be. Unfortunately, unexpected deaths do happen, and if your estate plan isn’t up to date, it can cause unnecessary stress and conflict for your family.
If you’d like personalised advice or assistance reviewing your estate plan after separation, book a free consultation with Lidia. We’ll ensure your legal documents reflect your new reality and provide peace of mind for you and your loved ones.