Separation, death, Wills & superannuation

If you have separated, you really need to think hard about updating your Will.

Firstly, do you have a Will?

If you do have a Will, does it leave your assets to your ex-partner? If it does, then you need to revoke it and make a new Will.

If you don’t have a Will, even if you have separated from your partner or spouse, it is likely that they would still be entitled to the entirety of your assets were you to die.

Think it through – particularly if you have children, this is a serious issue. You cannot assume that were you to die, and your ex-partner were to inherit the entirety of your estate, that they would then in turn upon their death leave it to your children. More likely, they will re-partner, and then there is the risk that they will then die, leaving all of their assets to their new partner, who is highly unlikely to look after your children.

Accordingly, when I talk to family law clients, one of the matters that I make sure we discuss is putting proper arrangements in place in the event of their death.

It is not just as simple as executing a new Will, however. If you jointly own real estate with your partner, it is highly likely that you owned it as “joint tenants”. Many people are not even aware of this. What it means is that if you die, even if you have a Will leaving everything to your children, your interest in the real estate goes to your ex-partner.

I can advise you quickly if you fall into this category, and I can help you if necessary change the way you hold jointly owned property to ensure that your interest in that property goes where your Will says if something happens to you. There are significant practical and tactical considerations as to whether you do this that I will talk through with you.

You also have to consider superannuation. Often, clients have substantial superannuation entitlements, not only their contributions to the fund, but death benefit entitlements as well.

Superannuation cannot be disposed of through your Will. The trustee of your super fund decides who gets your super in the event of your death. The discretion of the trustee is limited, in effect, to giving your super to somebody who has been in an economically dependent relationship with you – for example, your ex-spouse.

You don’t want the trustee of your super fund to give your super to your ex-partner – if they do, you run the risk that your ex-partner will then get a new partner, die, and the new partner will end up with your superannuation as well. To avoid this, I can help you to execute a binding death nomination which forces the trustee to deal with your super in the way that you want.

If you have separated, it is important that you get proper legal advice about these sorts of considerations, not just immediately what to do about your ex-partner. It is an essential part of making sure that you and your children are protected moving forward.

If you need assistance contact me at andreww@andrewwarren.com.au or call one of my offices for a no obligation discussion and for expert legal advice.