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Marriage, divorce and Wills

How marriage and divorce affect a Will.

Marriage and divorce affect the validity of a Will.

Marriage

A Will made before someone marries Will automatically be revoked by a marriage unless:

  • the Will already provides for the marriage partner
  • the spouse has been appointed as executor, trustee or guardian, or
  • a revocation of the Will would mean that the estate would pass to the executor, administrator or State Trustees.

A Will won't be revoked if the Will was made when person was thinking about getting married (engaged) and later marries this person, even if the spouse is not mentioned in the Will.

If a Will-maker does not have a partner, but makes plans for a potential spouse in their Will, and they eventually get married, this will not cause the Will to be revoked.

See s. 13—Wills Act 1997 (Vic) (link below)

Divorce

A divorce or annulment will not revoke a Will or revive an old Will (made before the marriage).

The Will is still valid, but the ex-spouse is no longer a beneficiary. The Will is to be read as though the ex-spouse died before the Will-maker. If they have children, the ex-spouse can still carry out their parenting responsibilities mentioned in the Will. For example, they may be a trustee for a trust that benefits their children.

However, anything gifted to the divorced spouse will no longer be valid.

If the Will-maker has appointed the divorced spouse as the executor, trustee or guardian, this appointment Will not be valid, unless the appointment relates to their children.

See s. 14—Wills Act 1997 (Vic) (link below)

Ex-spouse can still benefit

If the Will-maker still wants the ex-spouse to be a beneficiary in the Will after the divorce, they will need to make these intentions clear. This may involve drafting a new Will or changing to the old one.

See Changing a Will.

If the Will-maker’s intentions are not clear, it can make the Will vulnerable to a challenge.

See Challenging a Will.

Divorce outside Australia

If the divorce occurred outside Australia, it will affect the Will if the divorce is recognised in Australia under Family Law Act 1975. If the divorce is recognised, the rules above apply.

More information

Legislation

There are two Acts that apply in Victoria.

Wills Act 1997 (Vic)

  • s. 3—defines domestic partner, disposition, minor, and spouse
  • s. 6—Wills for minors (children under 18) who are married
  • s. 13—effect of marriage on a Will
  • s. 14—effect of divorce on a Will

See Wills Act 1997 (Vic).

Wills Act 1958 (Vic)

This Act still applies if the Will was revoked before 20 July 1998.

  • s. 16A—effect of divorce

See Wills Act 1958 (Vic).

Administration and Probate Act 1958 (Vic)

  • s. 3—definition of spouse
  • s. 51—distribution if intestate leaves a partner

See Administration and Probate Act 1958 (Vic).

Updated