Does Separation or Divorce Cancel a Will?

Relationship breakdown is one of the most common reasons an estate plan no longer reflects a person’s wishes. Many people assume that separation or divorce automatically updates their will, but under Victorian law this is only partly the case. Misunderstandings about how the law operates can easily lead to outcomes that differ from what was intended.

What happens to a will after divorce?

In Victoria, divorce does not cancel a will entirely, but it does change how certain parts of the will operate.

Once a divorce becomes final, the law generally treats the former spouse as if they died before the will-maker. In practical terms, this usually means that:

• gifts left to the former spouse no longer take effect; and

• any appointment of the former spouse as executor or trustee is revoked.

The rest of the will remains valid. However, removing a major beneficiary or executor can significantly alter how the estate is distributed. In some cases, this can lead to gaps in the will, partial intestacy, or outcomes the will-maker never intended. It can also increase the likelihood of disputes between family members.

Importantly, the law does not rewrite the will to reflect new family dynamics. It simply removes the former spouse and leaves the remainder of the document to operate as best it can.

What if you are separated but not divorced?

This is where many people are caught out.

Separation alone has no effect on a will in Victoria. Until a divorce is finalised or a new will is made, an estranged spouse may still inherit under an existing will and may still be appointed as executor.

This can come as a shock to families, particularly where a separation has been long-standing or acrimonious. From a legal perspective, however, the will continues to operate exactly as written.

Why relying on default rules is risky

Relying on what happens “automatically” after divorce or separation is risky. The law’s default rules are blunt and cannot take into account the personal nuances of your circumstances, such as blended families, informal arrangements, or changing financial priorities.

Even where a divorce removes a former spouse from benefiting under a will, it does not prevent them from making a claim against the estate if they remain an eligible person. Similarly, children, new partners, or other dependants may find themselves affected by an outdated estate plan.

The practical takeaway

If you separate or divorce, your will should be reviewed as a priority. Waiting until matters feel settled can leave your estate exposed in the meantime, particularly if something unexpected occurs.

A simple update to your will can ensure that the right people are appointed to manage your estate, that your assets are distributed as intended, and that the risk of disputes is minimised.

Final thought

In Victoria, divorce alters how a will operates, but it does not replace the need for an updated estate plan. Separation changes nothing at all. The safest course is to treat any relationship breakdown as a trigger to review your will, rather than relying on assumptions about how the law will step in.

Please note, this article is general in nature and does not take into account your personal situation or circumstances. For further information please contact Kenney Legal at info@kenneylegal.com.au or contact us via our social media networks.