Separated but not divorced? Consequences if you don’t have a Will.
Have you separated from your spouse but have not legally divorced? If you are still married your ex-spouse is eligible to make a claim on your estate particularly if you do not have a Will in place documenting your intentions.
If you die without a Will, the rules of intestacy will determine how your estate is divided using a pre-determined formula. If you are still legally married, your assets will pass firstly to your legal spouse regardless of whether you have separated or not. A ‘legal separation’ is not sufficient to prevent an ex-spouse from receiving a benefit, what is required is a divorce certificate.
Without a proper Will in place to document your wishes, a court would require evidence to prove that the marriage had ended and there were no longer any moral or financial ties between the deceased and the ex-spouse. This can be costly and emotional for your loved ones.
Following a separation and/or divorce it is important to update your Will. At this time you should also update your Enduring Power of Attorney and Appointment of Enduring Guardian.
If you have a proper Will in place the consequences of failing to legally sever ties with your ex-spouse through a formal divorce may be different.
The estate planning lawyers at Matthews Folbigg can provide legal advice and assistance in drafting a Will, Power of Attorney and Enduring Guardianship. Contact our office in Parramatta for more information.