Say you and your spouse separate, that means in the event of your death all your property will go to your children or your family right? No that is not always the case.

Married

If you are married and separate, your Will remains unchanged. So what do you do if your Will no longer reflects your current wishes?

Once you become divorced any gifts to your former spouse or appointment of your former spouse as executor, trustee and/or guardian in your current Will will be revoked. But before you can apply for a divorce you must be separated for twelve months.

Even if you become divorce and any gifts to your former spouse or appointment of your former spouse as executor, trustee and/or guardian in your current Will are revoked, your current Will can still have unintended consequences in how your deceased estate is administered.

What if you don't have a current Will? If you don't have a Will the laws of intestacy will apply.

In Queensland, if you are separated but not divorced the laws of intestacy recognise your former spouse as a surviving spouse and they will generally inherit the lion's share of your deceased estate.

De Facto

If you are in a de facto relationship and separate, any gifts to your former spouse or appointment of your former spouse as executor, trustee and/or guardian in your current Will will be revoked.

Again, even though any gifts to your former spouse or appointment of your former spouse as executor, trustee and/or guardian in your current Will are revoked, your current Will can still have unintended consequences in how your deceased estate is administered.

If you don't have a Will, the laws of intestacy will also apply, and in Queensland a former de facto spouse is not a surviving spouse for a deceased estate.

Estate Planning

Whether or not you are married, were married, were de facto, have a current Will or don't have a current Will, once you separate it is important that you consider your estate planning and so that your current wishes are in place you should do a new Will. Not knowing what the future holds you should do this as soon as possible.

What about my share of our house?

In Queensland, where real property is owned jointly with another person, it will be owned as either "joint tenants" or "tenants in common". How you own real property will affect what happens in the event of your death, irrespective of what your Will says.

"Joint tenants" means you and your former spouse own the property together and in the event of either persons death, the deceased's share of the property will automatically go to the other person by survivorship.

"Tenants in common" means that you each own a separate share of the property and in the event of either persons death, the deceased's share of the property will form part of their deceased estate and administered in accordance with their Will or the laws of intestacy if you don't have a Will.

You can change the ownership of property from "joint tenancy" to "tenants in comment" which will stop your former spouse from receiving full ownership of jointly owned property in the event of your death. This is called "severing" the tenancy.

Is that the end?

No it's not. You may now have your estate planning affairs in order, but unless you have done a property settlement with your former spouse you have not severed the financial relationship between you.

Without finalising property settlement with your former spouse there is likely to still be property or debts held together. Or if there isn't, you could be entitled to more than the property that is solely in your name, ownership or possession.

Upon separation you should also consider getting family law advice.

Our Family Law and Wills and Estate teams are able to provide you with comprehensive legal advice to ensure that your affairs are properly in order and your interests are protected.

• It you would like to discuss your Family Law matter - contact our Family Law
• If you would to discuss Estate Planning – contact our Estate Planning