Separated? Update the Will Now—Do Not Wait for Divorce

Separation is a critical trigger to review an estate plan. In Queensland, it is important to understand that separation alone does not change a Will. If a Will appoints a spouse as executor or leaves them a substantial benefit, those provisions may still operate if death occurs before a divorce is finalised.

Queensland legislation addresses the impact of divorce—not separation. Under the Succession Act 1981 (Qld), divorce can revoke certain parts of a Will that relate to the former spouse (including some appointments and gifts), unless a contrary intention appears in the Will. However, relying on those “automatic” rules is risky: they do not address the practical realities of an estate administration during a contested separation, they may not deal with substitute executors or residuary distributions as intended, and they do not fix outdated superannuation nominations or other non-estate assets that pass outside the Will.

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In addition, a spouse (and in some circumstances a former spouse or de facto partner) may have rights to bring a family provision application under Part 4 of the Succession Act 1981 (Qld), which can lead to delays and disputes if arrangements are unclear.

Updating a Will promptly after separation reduces uncertainty and better aligns the estate plan with current intentions.  Contact Kauri Burgess at Aylward Game Solicitors for an estate planning review. Our team can also assist with family law matters, ensuring your legal affairs are aligned and your interests are protected. Please contact us to discuss your requirements and arrange a confidential consultation.

FAQs

1. Does separation automatically revoke a Will in Queensland?

For married couples, separation alone generally does not revoke a Will or automatically remove a spouse as a beneficiary or executor. Until the divorce becomes final—or the Will is properly updated—existing provisions relating to the spouse may continue to operate.

Different rules can apply when a de facto relationship ends, so individual legal advice is important.

2. Can my separated spouse still inherit under my Will?

Potentially, yes. If you remain legally married and your existing Will leaves assets to your spouse, those gifts may remain effective while you are separated but not yet divorced. Updating the Will promptly can help ensure that your estate reflects your current intentions.

3. Can my separated spouse remain the executor of my estate?

Yes. If your Will appoints your spouse as executor, separation by itself may not cancel that appointment. This could allow the separated spouse to control or participate in administering the estate if you die before the Will is changed or the divorce becomes final.

4. What happens to a Will after divorce in Queensland?

Under section 15 of the Succession Act 1981 (Qld), divorce may revoke certain gifts, appointments and powers granted to a former spouse. Exceptions can apply, including where the Will demonstrates a contrary intention. The remaining provisions then operate according to the wording of the Will and applicable succession law.

5. Should I rely on divorce automatically removing my former spouse?

It is generally safer not to rely solely on the automatic effect of divorce. Those rules may not produce the distribution you intended and may create issues involving substitute executors, residual beneficiaries or trusts. A professionally reviewed Will can provide clearer instructions.

6. When should I update my Will after separation?

You should consider reviewing your Will as soon as practical after separation rather than waiting for the divorce to be finalised. Early review can reduce uncertainty and help ensure your executor appointments, beneficiaries and asset distribution reflect your current circumstances.

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7. What other estate planning documents should be reviewed?

A separation-related estate planning review may include:

• Your Will
• Enduring Power of Attorney
• Superannuation death benefit nominations
• Life insurance beneficiaries
• Jointly owned assets
• Family trusts and company interests
• Testamentary trusts
• Digital assets and account instructions

Some of these assets may pass outside the Will and require separate action.