This document discusses the impact of changes in relationship status, such as marriage, separation, divorce, and re-partnering, on estate planning. It notes that marriage generally revokes prior wills and provides intestacy rules for distributing a deceased spouse's estate to surviving spouses and children. Separation and divorce invalidate beneficiary designations and bequests to former spouses. The document highlights the need to revisit one's estate plan following relationship changes to ensure assets are distributed according to one's wishes and to avoid unintended beneficiaries. It provides an example court case that determined a woman was considered a spouse, not former spouse, and was therefore eligible to make a claim against her late partner's estate.

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I'm Never Going to Die
and My Partner's Never
Going to Leave Me
Exploding the Myths and Misconceptions
around Estate Planning and Family Law
Daniella Trimboli, Lawyer
Wednesday, 3 August 2016
5144111v1

2. > Consider your Estate Plan when your
relationship status changes through:
> Marriage
> Separation and divorce
> Remarriage/re-partnering
> Being proactive ensures that your
family knows your intentions
Why?
2

3. > Revokes wills, except:
> Gifts or appointments to a spouse are not
revoked by marriage
> Wills made in contemplation of marriage
will not be revoked
> No will = intestate estate
1. Marriage
3

4. Intestacy – How much does your spouse get?
1. Marriage
4
No Children Children
Entire estate  All personal
property
 Entire estate (if <
$100,000)
 $100,000 plus 1/3

5. > The above excludes assets outside of the
Estate e.g. superannuation & joint assets
> Consider ownership of assets
> Marriage does not invalidate:
> BDBN
> Powers of Attorney
1. Marriage
5

6. Separation
> BDBN in favour of spouse still
valid
> No effect on Powers of Attorney
> Spouse will still be eligible to
make a claim for further
provision
> Will not revoked
> Eligible as spouse under
intestacy provisions if you die
without a Will
Divorce/Property Settlements
> Invalidates BDBN
> No effect on Powers of Attorney
> Former spouse may be eligible
to make a claim for further
provision in limited
circumstances, such as if a
property settlement is invalid
> Gifts to former spouse in a Will
are revoked
2. Separation and Divorce
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7. > Recent decision of the County Court
> Vivienne and Edward married in 1959
and divorced 5 years later
> V then married her second husband
and divorced 21 years later
> V & E married again in 1989 &
separated in 1995 under the one roof.
> Formally separated in 2000
Doran v Forde
7

8. > V & E obtained orders of the Family
Court dividing property but did not
divorce
> They maintained a cordial relationship
and V provided care to E.
Doran v Forde
8

9. Question: Was Vivienne
Edward’s spouse or was she
a former spouse?
9

10. > If she was a former spouse, she would
not be eligible to make a claim
because Orders made under the
Family Law Act.
> Estate argued that “spouse” under the
TFM laws required an examination of
the actual relationship, so V was not a
spouse.
Doran v Forde
10

11. HELD: there was no need to
look beyond the definition of
spouse and V was eligible.

12. > Important to revisit your estate plan
where:
> there are children of the first marriage
OR
> where there is a new de facto spouse &
separation (not divorce) from former
spouse
3. Re-partnering

13. > Problems that may arise:
> Separated spouse AND new partner
will both be eligible under intestacy
provisions
> New partner will receive less than the
spouse until they have lived with the
deceased for more than 4 years
3. Re-partnering
13

14. > Problems that may arise:
> Out of date will? Gifts to separated
spouse will be valid.
> Both will also be eligible to make claims
for further provision from your Estate
> BDBN favours separated spouse over
new partner
3. Re-partnering
14

15. > No will = intestacy
> Division of estate between spouse and
children of first marriage is set out as
above
> If the aim is to protect gifts to children,
consider mutual wills
3. Re-partnering
15

16. 16
QUESTIONS

17. The information contained in this
presentation is intended as general
commentary and should not be regarded as
legal advice. Should you require specific
advice on the topics or areas discussed
please contact the presenter directly.
Disclaimer
17

18. 18
Daniella Trimboli
Lawyer and RKWN Committee Member
Telephone: (03) 8602 7285
Email: dtrimboli@rk.com.au

19. Level 12, 469 La Trobe Street, Melbourne, VIC 3000 P: +61 3 9609 1555
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