Divorced or Separated? Why You Must Rewrite your Will Immediately

With all the stresses that come with being recently divorced or separated, the emotional fall out can be exhausting. From sorting out living arrangements, delegating child custody schedules and dividing your shared assets, and have you rewritten your will yet?
With so much on your mind, updating your estate planning documents might not be at the forefront. However it’s imperative that you rewrite your will, or your hard-earned assets could end up in the hands of the person you are trying to cut financial ties to. It is a common misconception amongst many Australians, that once they have physically separated from a partner, their former spouse automatically loses any right to inherit their estate, sadly this is not the case under Australian law.
If you have recently divorced or separated, here is exactly why it is crucial that you change will beneficiaries and rewrite your will immediately. Let the team at Janson Lawyers assist you in securing your future.
The Legal Reality: Separation is Not Divorce
The most critical piece of legal knowledge you need during a relationship breakdown is this: Separation has no automatic impact on your existing will. Under the Wills Act 1936 (SA), a legal marriage remains fully intact in the eyes of the law until a formal Divorce Order is granted by the Federal Circuit and Family Court of Australia. Because you must be separated for a full 12 months before you can even apply for a divorce, there is a minimum one-year window where you are legally "separated but not divorced."
If your current will names your spouse as your primary beneficiary and executor, which most married couples do, that will remains 100% valid during your separation. This leads to a question South Australian family lawyers hear all too often: "Who inherits if separated but not divorced?" The answer is simple but alarming. If you were to pass away unexpectedly during this interim period, your ex-partner would still inherit your estate, control your assets, and potentially even be in charge of managing your funeral arrangements. Even if you have completely separated your lives, signed a lease on a new home, and haven't spoken in months, the outdated piece of paper dictates your legacy.
What Happens to Your Will When You
Do Get Divorced?
While separation does nothing to change your will, a final Divorce Order does have a legal impact. In South Australia, the granting of a divorce automatically revokes any clauses in your will that benefit your ex-spouse, and it cancels their appointment as an executor, unless the will specifically states otherwise.
However, relying on a future divorce to fix your estate planning is a high-risk strategy for two main reasons:
- The Time Gap: As mentioned, a divorce takes over a year to finalise. A lot can happen in twelve months. If you pass away before the court grants the divorce, your ex-spouse inherits everything.
- The "Intestacy" Trap: If your will named your ex-spouse as the sole beneficiary and executor, and the divorce finally revokes those clauses, you are left with a will that has no executor and no beneficiary. This can trigger a partial or total "intestacy," meaning your estate will be distributed according to rigid government formulas rather than your actual wishes.
To avoid these traps, proactive divorce estate planning is essential the moment the relationship ends.
Beyond the Will: Joint Assets, Superannuation, and Life Insurance
Your will only governs "estate assets", things you own solely in your name. During a separation, you must also look at non-estate assets, which are often where the biggest financial shocks occur.
Jointly Owned Property
If you and your former partner own a family home together as "Joint Tenants," the principle of survivorship applies. This means that if one co-owner dies, the property automatically transfers entirely to the surviving owner, regardless of what your will says. To prevent this, you may need a lawyer to "sever the joint tenancy," converting it into a "Tenants in Common" arrangement so you can leave your share of the property to whoever you choose.
Superannuation and Life Insurance
Many people believe their will covers their superannuation payouts. It does not. Superannuation and life insurance policies bypass your will entirely. They are paid out according to the Binding Death Benefit Nomination (BDBN) you signed with your fund.
If your ex-partner is still listed as your beneficiary on your super account, the fund trustee may be legally required to hand your super balance and life insurance payout over to them. When you update your will, you must also formally change will beneficiaries on your superannuation policies.
Protecting Your Children
If you have children, updating your will after separation specifically here in South Australia is the only way to ensure they are financially protected.
If your wealth flows directly to an ex-spouse because you didn’t change your will, you lose all control over how that money is spent. While you might hope your ex-spouse would use the inheritance to support your children, there is no legal obligation for them to do so. If they re-marry or enter a new relationship, your assets could eventually end up benefiting a completely different family, leaving your own children with nothing.
By drafting a new will immediately after separating, you can establish testamentary trusts or appoint independent trustees to manage your wealth directly for your children's benefit, completely bypassing your former partner.
How Janson Lawyers Can Assist You in South Australia
Navigating a separation is stressful enough without trying to decipher complex succession and family law statutes on your own. This is where professional legal guidance becomes invaluable.
Located conveniently in Christies Beach and serving clients across South Australia, Janson Lawyers provides the comprehensive legal support you need during this transition. Because they specialise in both Family Law and wills and Estates, they understand exactly how a relationship breakdown impacts your financial legacy. They can seamlessly bridge the gap between your separation and your long-term estate planning.
When you partner with Janson Lawyers, they will help you:
- Draft a new, legally robust will that immediately protects your assets during the separation period.
- Restructure jointly held property to protect your equity.
- Properly update your superannuation and life insurance Binding Death Benefit Nominations.
- Establish Enduring Powers of Attorney and Advance Care Directives, ensuring your ex-partner no longer has the legal right to make financial or medical decisions on your behalf if you lose capacity.
Take Control of Your Future Today
Separation marks the end of one chapter and the beginning of another. Don't leave your financial future, your hard-earned assets, or your children’s inheritance hanging in legal limbo.
If you are currently navigating a relationship breakdown, take control of your estate planning today. Contact the experienced, compassionate team at Janson Lawyers to discuss your options and gain the peace of mind that comes with a secure, updated estate plan. Visit Janson Lawyers to book a consultation with a South Australian legal expert.










