Separation can be an upsetting experience for everyone involved. Most people think about splitting assets, child support or putting care arrangements in place for children once they separate. One thing that is often overlooked is Estate planning.
If you have signed a Will prior to separation, it may not reflect your wishes. This may mean that you inadvertently leave your entire Estate to your ex-spouse.
If you did a Will when you were married and left your entire Estate to your spouse, then this will continue to be in effect until you get divorced or update your Will.
If you die without a Will in Western Australia, you die “intestate”. This means that the law applies to the division of your Estate. For instance:
- If you died leaving a husband or wife, they would receive the entire Estate;
- If you died leaving a husband or wife and children, your husband or wife would receive the first $472,000 of your Estate, and the next one-third. The children would share the next two-thirds.
This would apply even if you and your spouse have separated. In the eyes of the law, you are still “married” even if you have separated.
When you separate, you may wish to leave your Estate to your children or other relatives. You should complete a new Will as soon as possible to ensure you do not disinherit them by accident. It is also advisable to get divorced as soon as you are eligible.
If you get divorced, this will invalidate your Will so you should also ensure that you get a new Will following your divorce becoming final.
If you need assistance drafting a new Will, the team at Joss Legal can help!
Enduring Power of Attorney / Guardian
An Enduring Power of Attorney is a document you can sign to have a person (ie. an Attorney or Attorneys) appointed to make financial decisions for you. This can be in circumstances where you lose legal capacity, or at any time.
An Enduring Power of Guardianship is a document you can sign to have a person to make personal, lifestyle and health decisions for you if you are not capable of making these decisions yourself.
If you signed a Power of Attorney or Power of Guardianship document prior to separation, it is not automatically invalidated after separation. If you have appointed an ex-partner as your Attorney or Guardian, this would still be in effect after you separation. This means your ex-partner could be making important financial and health decisions for you even after separation. Updating your Enduring Power of Attorney or Power of Guardianship following separation is also important.
The Joss Legal team can help with this!