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Home | Blog | Effect of Marriage on Estate Planning: Part 1 – Wills

Marriage is a legal relationship. Unsurprisingly, marriage has legal consequences. The various parts of this series provides a brief overview of some of the more commonly encountered effects of marriage on estate planning matters.

What is a Will?

A will is a legal document that operates after your death. It can serve many functions including naming executors, appointing testamentary guardians and disposing of your assets and property.

When is a Will revoked?

In NSW, section 12 of the Succession Act 2006 (NSW) provides that a will is revoked by the marriage of a testator (the will maker). There are exceptions to this rule including that wills can be drafted in such a way that they are expressed to be made in contemplation of marriage or conditional upon whether a marriage takes place or not.

Remaining married after you may have separated from your spouse can also have consequences for your estate. For example, spouses, and even ex-spouses are considered eligible persons to seek family provision relief from the Court if they are not adequately provided for in your will.

In the recent decision of Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10 a former wife of the deceased was successful in her litigation against the estate despite having separated from the deceased 25 years earlier. The former wife and the deceased had also finalised a divorce and financial settlement 23 years prior to the deceased’s death.

Remaining married after separation, even if there is no ongoing dependence, does not remove the legal effect and consequences of marriage. Divorce is relatively inexpensive and quick if it is able to be sought by consent or without dispute.

Whether you are married, separated or divorced you should still consider how marriage may affect your will and your estate planning matters.

If you would like assistance with your estate planning matters please do not hesitate to contact Wills & Estates lawyers on 13 43 63 or via our online enquiry form.

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