There’s a piece of conventional wisdom that does a lot of damage in family law: the assumption that once a couple separates, their old will somehow stops mattering. It feels intuitive — the relationship is over, so surely the legal documents written during it are obsolete too. In Victoria, that assumption is wrong, and it’s wrong in a way that has caught out a genuinely surprising number of people.
Here’s the actual legal position. A will isn’t automatically affected by separation. It’s only affected, and only partially, once a divorce is finalised. Under Victorian succession law, a finalised divorce will generally revoke certain provisions in an existing will that benefit the former spouse — typically any gift left to them and any appointment of them as executor — unless the will specifically says those provisions should survive divorce. Separation, on its own, does none of this. The will simply keeps operating exactly as it was written, ex-partner included, for as long as the couple remains legally married but not yet divorced.
That gap matters more than it might sound, because in Australia it’s rarely short. To apply for divorce, a couple generally needs to have been separated for at least twelve months first, and the divorce application and court process takes further time on top of that. It’s entirely normal for eighteen months, two years, or longer to pass between the day a couple separates and the day a divorce is actually finalised. For all of that time, if nothing has been changed, an old will naming an estranged spouse as the main beneficiary and executor remains fully valid and fully enforceable.
Picture the situation this creates in practice. Someone separates, eventually moves into a new relationship, perhaps starts a new family, and assumes their affairs would naturally pass to their current partner and children if something happened to them. If their will was never updated, none of that is true. The estranged spouse — still legally married to them, still named in an outdated document — could be entitled to inherit the bulk of the estate, while a new partner and any children from a new relationship are left with little to no legal claim unless they go through the time, cost, and uncertainty of contesting the will after the fact.
This is exactly the kind of situation that proper will lawyers in Cranbourne deal with regularly, and the fix is usually far simpler than the problem it prevents: drafting a new will, or at minimum reviewing and updating the existing one, as soon as separation happens rather than waiting for the divorce to be finalised. A new will can immediately remove the estranged spouse as a beneficiary and executor, name the people who should actually be making decisions and receiving assets, and remove any ambiguity that a contested estate would otherwise have to resolve through the courts.
Wills aren’t the only document that quietly survives separation unchanged. A power of attorney naming an estranged spouse, granting them authority to make financial or medical decisions on someone’s behalf, remains fully in force unless it’s formally revoked — which matters more than people expect, since incapacity doesn’t wait politely for a divorce to be finalised before it happens. Reviewing enduring powers of attorney alongside a will is standard practice for exactly this reason: both documents were written for a relationship that no longer reflects the current reality, and both keep operating regardless.
Superannuation is another asset that catches people out in exactly the same way, and for a similar reason. Most super funds operate on binding death benefit nominations that sit completely outside the will — they’re a separate form held with the fund, not a clause in the estate plan, and they’re just as unaffected by separation as the will itself. If an estranged spouse is still listed as the nominated beneficiary on a superannuation account, separation alone won’t change that any more than it changes an outdated will. Super often makes up a significant share of someone’s overall estate, so reviewing death benefit nominations alongside a will, rather than assuming they’re covered by the same update, is worth doing as part of the same exercise.
Jointly owned property adds one more wrinkle worth knowing about. Assets held as joint tenants — a family home is the most common example — pass automatically to the surviving owner the moment one owner dies, regardless of what either person’s will says. If a couple still owns their home as joint tenants during a long separation, that automatic right of survivorship remains in place until the property is formally transferred or sold as part of the settlement, which is one more reason estate planning and property settlement, while legally separate, are worth coordinating rather than leaving entirely to chance.
There’s also a common misunderstanding worth clearing up directly: people sometimes assume that because they’re going through a property settlement, their estate planning is automatically being handled as part of the same process. It isn’t. A property settlement (whether reached through a Binding Financial Agreement, Consent Orders, or a court determination) deals with dividing assets between separating partners during their lifetimes. It has no bearing on what a will says should happen to those assets after death. The two processes run on entirely separate tracks, and updating one does nothing to update the other.
In practice, the right time to review a will is the moment separation happens, not the moment a divorce certificate arrives. For anyone going through the broader process of formally ending a marriage, it’s worth raising the will and power-of-attorney question with the same divorce lawyers in Cranbourne handling the separation, so estate planning gets dealt with alongside the divorce rather than forgotten until something forces the issue later. The two matters are legally distinct, but there’s no reason they need to be handled as two completely disconnected conversations months or years apart.
None of this requires drama or urgency for its own sake. It simply requires treating “update the will” as one of the practical, unglamorous tasks that belongs on the same list as changing addresses and updating bank details after a separation — a task that’s easy to defer indefinitely and expensive to have skipped if life takes an unexpected turn in the meantime.
