Separation triggers immediate and significant changes to your estate planning situation, most of which people never think to address. In many cases, a separated but not yet divorced spouse may still be entitled to your estate, may still hold financial authority over you, and may still be nominated to receive your superannuation. Acting quickly matters.

Nobody going through a separation is thinking about their Will

They are thinking about the house, the children, the finances, the next conversation they have to have with someone they once built a life with. Estate planning is the last thing on the list. Which is exactly why it creates so many problems.

If you are separated but not yet divorced, your former partner may still legally qualify as your spouse under intestacy laws. Which means if something happened to you before the divorce was finalised, and you had no Will or an outdated one, they could still be entitled to your estate.

What separation actually changes, legally

Your Enduring Power of Attorney, if you made one in favour of your former partner, may still be valid. Depending on its terms, they could have authority over your financial affairs right now, during the very period you are negotiating a property settlement.

Your superannuation binding death benefit nomination may still name them. Superannuation does not follow your Will, and if you have not updated your nomination since separating, your former partner may still be the person your fund pays.

Your jointly held property, if owned as joint tenants rather than tenants in common, would pass automatically to your former partner regardless of what your Will says. That survivorship right overrides everything. If your divorce has been finalised, some or all of your Will may have been automatically revoked depending on when it was made and what state you are in.

What to do

Separation is one of the most important moments to update your estate plan. I have put together a guide specifically for people who are separating or have recently divorced that covers the key estate planning questions to work through and what most people miss in the process.

✦ Download the Separating or Divorced Guide

✦ Book a Family Wealth Planning Session

Frequently Asked Questions

Does separation automatically update my Will in Australia?

No. Separation alone does not revoke or update your Will. If your divorce has been finalised, some provisions may be automatically revoked depending on your state. You should update your Will as soon as possible after separating.

Can my separated spouse still access my finances?

Potentially yes, if you made an Enduring Power of Attorney in their favour and it has not been revoked. This should be reviewed immediately after separation.

What happens to my superannuation if I separate?

Your superannuation binding death benefit nomination may still name your former partner if you have not updated it. Super does not follow your Will and must be directed separately. Update your nomination as a priority.

What is joint tenancy and does it affect my estate?

If you own property as joint tenants with your former partner, their share passes automatically to you if they die, and vice versa. This survivorship right overrides your Will. You may wish to sever the joint tenancy and hold the property as tenants in common instead.

This content contains general information only. It is not legal advice. Your situation may differ and this is where tailored advice matters.