PREPARE/ENRICH Australia Blog

How Marriage Can Affect You and Your Partners Will

If you’ve recently become engaged or are newly married, planning a will may not be in your list of things to do. However, it’s important to begin drafting or updating your final will in order to avoid any legal complications if one of you were to pass away. 

Since your spouse is with you ‘til death does you part’, it makes sense for both of you to put into writing who will be getting each other's assets upon death. Don’t leave it up to chance. Here is everything you need to know about how marriage affects you and your partner will and when you should begin drafting one to ensure future security. 

When do you need a will and why does it matter?

If you are married, you need a will. Because you and your partner are legally bound together by marriage, having a will ensures that the passing of assets upon death will be easier, quicker, and without any drawn-out legal complications. If you have an existing will but then marry or if you divorce and then remarry, you will need to create a new will. 

Many Australians don’t realise that your will becomes invalid upon marrying. If you fail to update your will after marriage, then a large part of your property will automatically go to your spouse once you pass away. Your spouse will inherit your assets when you pass away - even if you don’t have a will. If you want anyone else (for instance, your children) to inherit your assets then you need an updated will. 

With a will, your assets and property will be distributed according to your wishes. Without a will, state law will govern who will get your assets; generally, this includes your spouse or children however it isn’t always the case. 

Choosing between a mutual will or individual will

You may wonder if you and your spouse should have matching wills. In this case, it all depends on a couple of factors. If you are married with uncomplicated assets and a simple family structure then you may look at having a mutual will or mirror will. These wills are two separate documents - one for each spouse - that mirror each other. In a mutual will, each spouse agrees that the majority of their estate or assets will go to the surviving spouse. When the surviving spouse dies the existing estate will then be passed to the couple’s children or agreed-upon party. 

For married couples who have children from previous marriages or have a blended family structure, a mutual will generally isn’t a wise option. In this situation, an individual will should be created that meets each of your specific needs and obligations. 

An individual will make it easier to distribute assets if a spouse or both spouses have children from previous marriages. In some cases, a partner may wish to leave their assets to their biological children, and the easiest way to do this is to have a separate will that identifies what your wishes are for your individual assets. 

What happens when your partner passes away without a valid will?

When a person dies without leaving a will, their property must be passed in accordance with state law. Generally, if you are married then you will inherit your spouse's property. If you aren’t married or are divorced, then you aren’t entitled to inherit your partner’s property. 

What happens to a married couple’s home once a spouse passes away will depend on who formally owns it. If a couple jointly owns their home then there are two typical results:

  1. If a couple were beneficial joint tenants at the time of the death, then when the first spouse dies the surviving spouse will automatically inherit the other spouse’s share of the property. 
  2. If you own your property as tenants in common, then the surviving spouse does not automatically inherit the other spouse’s share. 

How do marriage and divorce affect your will? 

Upon marriage or divorce, there are a number of repercussions on your property or assets. Here are some of the effect’s marriage has on your will:

  • Upon marriage, a spouse’s existing will is revoked. This means you must update your will as soon as possible.
  • If your spouse passes away without a valid will, the entirety of their estate will be passed onto you and vice versa. 

Here are some of the effects divorce has on your will:

  • Depending on which state you live in, a divorce will instantly render your will invalid.
  • In some cases, divorce will revoke parts of your will.
  • A divorce will revoke your former spouse as your executor, including any gifts/assets left to them.

Updating or creating your will after marriage

An updated, valid will ensures the orderly management of your assets and property upon passing away. Reviewing and updating your will is important if you are engaged or newly married, otherwise, you won’t have control over what happens to your property once you’re no longer around. 

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