Estate Planning for Separated or Divorced Individuals: What You Must Update
In summary
Separation changes nothing, and divorce only changes part of your will. Section 13 of the Succession Act 2006 (NSW) revokes gifts and appointments in favour of a former spouse on divorce. Separation has no effect, and neither touches a will made during a de facto relationship.
Your power of attorney and enduring guardianship survive the marriage. NSW law revokes neither on separation or divorce, so a former spouse can retain authority over your finances and your medical treatment until you act.
Superannuation, life insurance and jointly owned property pass outside your will. Each needs updating separately, and a former spouse can still claim against your estate unless a release is approved by the Supreme Court.
Most people who separate assume their legal affairs will catch up with their circumstances on their own. In New South Wales, very little happens on its own, and the documents people forget are the ones that matter most.
Does separation change your will?
No. Your will operates exactly as written until you make a new one or a divorce takes effect.
You must be separated for twelve months before you can apply for a divorce, and the order takes effect one month and one day after it is made. Most people therefore spend well over a year separated, legally married, and governed by a will that reflects a finished relationship.
For de facto couples the position is permanent. NSW succession law contains no provision that alters a will when a de facto relationship ends.
What does divorce actually change?
Under section 13 of the Succession Act 2006 (NSW), divorce revokes any gift to your former spouse, any appointment of them as executor, trustee, advisory trustee or guardian, and any power of appointment in their favour. The rest of the will stands.
Three qualifications matter. Section 13 does not apply where a contrary intention appears in the will. Some appointments survive, including a former spouse as trustee of property held on trust for their children. And because many wills leave everything to a spouse with no substitute beneficiary, revocation can produce a partial or total intestacy.
Section 13 has no application to a former de facto partner.
Your power of attorney does not end when the marriage does
The Powers of Attorney Act 2003 (NSW) contains no provision revoking an appointment on separation or divorce. An enduring power of attorney naming your former spouse remains fully operative until you revoke it, including after you lose capacity.
Revocation requires positive steps. Sign a written revocation, serve it on your former spouse by registered post, notify your bank and any other institution holding a copy, and lodge it with NSW Land Registry Services if the instrument was registered. You must have decision-making capacity at the time you revoke.
Enduring guardianship carries the same risk
Enduring guardianship covers health, medical and lifestyle decisions. Section 6HA of the Guardianship Act 1987 (NSW) revokes an appointment automatically where the appointor marries somebody other than the appointee. There is no equivalent provision for divorce.
If you lose capacity, the person deciding on your treatment and your accommodation could be the person you separated from years earlier. Revocation must be in writing, in the prescribed form, witnessed by an eligible witness, and given to the appointee.
Superannuation sits outside your will
Superannuation is not an estate asset, so a new will on its own will not redirect it.
While you are separated but not divorced, a legally married spouse remains a spouse under the Superannuation Industry (Supervision) Act 1993 (Cth). A valid binding nomination in their favour still binds the trustee, and the fund pays your former partner.
After divorce, a former spouse is generally no longer a spouse for those purposes, so the nomination may fail and the decision passes to the trustee instead. Check whether your nomination is non-lapsing or lapses after three years, and whether any life insurance is held inside the fund.
Other assets that pass outside your will
Life insurance held outside super pays the nominated beneficiary directly. Update it with the insurer.
Property held as joint tenants passes to the survivor by right of survivorship, and a new will has no effect on it. Torrens title land can be severed under section 97 of the Real Property Act 1900 (NSW), though this should be weighed against your property settlement strategy first.
Trusts, self managed super funds and companies turn on control rather than ownership. Review who holds the appointor, trustee and director roles.
Your former spouse can still claim against your estate
A former spouse is an eligible person under section 57 of the Succession Act 2006 (NSW) and may apply to the Supreme Court for a family provision order within twelve months of your death. A completed property settlement makes that claim harder and does not prevent it.
NSW offers a mechanism no other state does. Under section 95, a person can release their right to claim, effective once approved by the Supreme Court. A release is commonly built into a binding financial agreement and is worth raising while your family law matter is live.
NSW notional estate provisions also allow the Court to reach assets that never formed part of the estate, including a jointly held home and superannuation paid to a nominee.
What to update, in order
Make a new will.
Revoke and replace your power of attorney.
Revoke and replace your enduring guardianship appointment.
Update your superannuation nomination directly with the fund.
Update life insurance nominations held outside super.
Review titles, trusts and company roles with advice.
Store the new documents where your former partner cannot access them.
Family law is federal, while wills, powers of attorney, enduring guardianship and family provision are governed by NSW legislation. The two systems run on different timelines and do not update each other, which is where the gaps open up.
If you have separated recently, contact Espino Law to arrange a consultation. Our team advises clients across Sydney and the Macarthur region on estate planning after separation.
FAQs
Does separation automatically cancel my will in NSW?
No. Separation has no legal effect on a will in New South Wales. If you separated but have not divorced and you die, your spouse can still inherit under the will and can still act as your executor.
Does divorce cancel my whole will?
No. Section 13 of the Succession Act 2006 (NSW) revokes gifts to your former spouse and their appointment as executor, trustee, advisory trustee or guardian. The rest stands. Where the will named your spouse as sole beneficiary with no substitute, the revocation can create a partial or total intestacy.
Is my power of attorney cancelled when I get divorced?
No. The Powers of Attorney Act 2003 (NSW) contains no automatic revocation on separation or divorce. You must sign a written revocation, serve it on your former spouse, notify your bank and other relevant institutions, and lodge it with NSW Land Registry Services if the instrument was registered.
Will my ex still receive my superannuation?
Possibly. Superannuation is not governed by your will. A valid binding nomination in favour of a spouse remains effective while you are separated but not divorced, and the trustee is bound to pay them. Update the nomination directly with your fund.
What happens if I die without a will while separated?
The intestacy rules in Chapter 4 of the Succession Act 2006 (NSW) apply, and a separated spouse who has not divorced is still a spouse. Where there are no children, or the children are all children of that spouse, they take the whole estate. Where there are children from another relationship, the spouse takes your personal effects, a CPI-adjusted statutory legacy and half the remainder.
Can my former spouse contest my will after a property settlement?
Yes. A former spouse is an eligible person under section 57 and may apply within twelve months of your death, although they must also show factors warranting the application. A release approved by the Supreme Court under section 95 is the mechanism designed to close that door.
Glossary of Key Terms
Binding death benefit nomination. A written direction to a superannuation trustee specifying who receives your death benefit. A valid nomination binds the trustee. Nominations may be non-lapsing or lapse after three years.
Contrary intention. Wording in a will indicating that a statutory rule is not to apply, such as a clause preserving a gift to a former spouse despite divorce.
Enduring guardian. A person appointed under the Guardianship Act 1987 (NSW) to make health, medical and lifestyle decisions if you lose capacity. The appointment is not revoked by separation or divorce.
Enduring power of attorney. An appointment under the Powers of Attorney Act 2003 (NSW) authorising another person to make financial and legal decisions for you, continuing after you lose capacity.
Family provision order. An order of the Supreme Court of NSW under Chapter 3 of the Succession Act 2006 (NSW) providing for an eligible person who has not received adequate provision from an estate.
Intestacy. The position where a person dies without a valid will, or where a will fails to dispose of part of the estate. Distribution follows the statutory formula in Chapter 4 of the Succession Act 2006 (NSW).
Joint tenancy. A form of co-ownership where the deceased owner's interest passes automatically to the surviving owner by right of survivorship, outside the will.
Notional estate. Property that was not part of the actual estate but which the Supreme Court of NSW may designate as available to satisfy a family provision order. Unique to New South Wales.
Section 95 release. A release of the right to make a family provision claim, effective only once approved by the Supreme Court of NSW. Available before or after death.
Statutory legacy. The fixed sum a surviving spouse receives under the intestacy rules where the deceased also left children from another relationship. Calculated under section 106 and adjusted for CPI, so the amount depends on the date of death.
