Recently Married? Here’s Why You Should Update Your Will
Your will is one of the most critical parts of your estate planning. We all want to feel that our loved ones will respect our wishes after death. A will is the best way to ensure your family handles your estate as you would want. Wills also take the burden off your family, so they don’t need to work out how to distribute your estate without guidance.
Marriage is another major consideration in estate planning. Once you get married, revising your will should be a priority. Here are some benefits to updating your will after marriage.
Your existing will is likely no longer enforceable
In Queensland, marriage generally revokes any wills made before that marriage automatically. A new spouse dramatically changes the interests around your estate. Your spouse has an inherent claim to your estate, and the law expects you to include them as a beneficiary.
Generally, if you pass away without creating a new will after marriage, you are typically considered to have died intestate (without a valid will). Your estate is then subject to the rules of intestacy.
To ensure your wishes are adhered to after your death, we strongly advise you to redraft your will to reflect your new circumstances.
Some exceptions apply to your will’s revocation. Your existing will remains effective if you drafted it “in contemplation of marriage”, as the Succession Act 1981 states. You can include this provision by adding an ‘in contemplation of marriage’ clause. This clause can refer to marriage generally. However, it’s helpful to refer to the particular marriage you’re entering by naming your future spouse.
The Succession Act exempts two other provisions from being revoked upon marriage:
- Gifts made to the person married to the testator at the time of the testator’s death;
- Appointment of the person married to the testator at the time of the testator’s death as executor, guardian or trustee.
But why deal with the technicalities of what parts of a will do and do not survive a marriage? You’re better off cleaning the slate and starting with a new will. This will always be the best way to make your estate planning clear.
Protecting children from a previous marriage
If you have children from a previous marriage, consider their interests when entering a second marriage. The laws governing inheritance can be complex, and without a valid will, your children may miss out on gifts you expected them to receive on your death.
The testator’s spouse and dependent children both have a claim to part of the testator’s estate. However, your specific wishes for what your children receive may not pass to them. If your former spouse remarries and drafts their own will, your children may never receive that property.
Given the parties with existing interests in your estate, second marriages can cause difficulties within your family unit and overall estate plan. To ensure everyone receives the entitlements you wanted for them, you should start with a new will. Where children from a previous marriage are concerned, creating a testamentary trust through the will can be an excellent solution.
Testamentary trusts regulate how specific assets are distributed to beneficiaries of the trust by the appointed trustees. Testamentary trusts are particularly useful for beneficiaries who are minors. Assets distributed to minors through the trust can be handled tax efficiently. The trust’s assets are also protected from seizure during bankruptcy or other legal proceedings.
Marriage is a significant event in the life of your estate. To protect the future interests of those you care about, drafting a new will after getting married is a must. Contact Life Law Solutions for all your estate planning needs.
